The opinion
ON REHEARING.
Per Curiam.
On petition for rehearing on the part of appellants, we have been favored with elaborate and able arguments, both printed and oral, by which the main questions upon which the decision of this cause is predicated, have been very fully presented and argued; but after mature deliberation, we are satisfied that the views announced in our former opinion are correct, and fully sustained by the authorities cited. One question argued, namely, the failure of appellees to make the bank and assignee parties, should be further noticed. That they were not joined as plaintiffs did not render the complaint defective, in failing to state a cause of action against the stockholders, for the reason already given, that the liability of appellants, as shareholders, is solely for the benefit of the creditors of the bank, and for the purpose of creating a fund over which neither the bank nor its assignee has any control or authority to collect; but conceding, that, for the purpose of' a complete determination of all the fights involved, they should have been made parties defendant, by virtue of either sec. 497, Mills’ Ann. Stats. or sec. 16 of the code, the failure to do so cannot be considered here, because appellants, by answering over, after demurrer, on the ground of defect of parties, have waived the right to raise the question on appeal: Sams Automatic Car-Coupler Co. v. League, 25 Colo. 129 ; 54 Pac. Rep. 642 ; nor does the fact thatneither the bank nor assignee were made parties defendant, in any manner affect the rights of the stockholders; because, whether sued alone, or in connection with the bank and. its assignee, they *567 would have the right to interpose any defense to the claim of the creditors which the bank could.
In support of their petition for rehearing, appellees have brought in and filed with the clerk of this court certain evidences of indebtedness of the bank, which were not presented on the trial below, and with respect to which the judgment has been reversed, and ask that we now modify our former opinion, by directing judgment upon these claims. We cannot consider original evidence in the case, and it is obvious, therefore, that the directions in the original opinion, with reference to these matters, are proper.
Petitions for rehearing denied.
Campbell, C. J., not participating in this, or former, opinion.