The opinion
Mr. JUSTICE JONES, dissenting:
I agree that this case should probably be controlled by the holding in Brownfield Subdivision, Inc. v. McKee, 61 Ill. 2d 168 , 334 N.E.2d 131 . However, I do not agree with the conclusion that Germania Federal Savings and Loan Association, the mortgagee of the concerned property, is not a necessary and indispensable party to this proceeding and accordingly I respectfully dissent.
It appears from the record that the defendants McDaniel had invested *2,000 in the lot in the subdivision and that Germania Federal Savings and Loan Association (hereafter Germania) had loaned *13,000 with the lot as improved with the mobile home as security. It therefore at once appears that the pecuniary interest of Germania in the outcome of the case far exceeds the interest of defendants McDaniel. Although plaintiffs’ action is for an injunction couched in terms of prohibition (praying that defendants McDaniel be enjoined from “maintaining” their trailer house on the property) its effect is decidedly mandatory. It compels removal of the mobile home from the site. As a result of the outcome of this case, the interest of Germania will be greatly impaired, if not completely destroyed. And, as we have seen, that interest is by far the largest pecuniary interest in the property affected.
Our supreme court had occasion to discuss the rules pertaining to the necessity of joining parties to litigation in chancery in Oglesby v. Springfield Marine Bank, 385 Ill. 414 , 52 N.E.2d 1000 . That case, as does the one under consideration, involved interests in real estate. The defendants there filed an amended answer after the evidence was practically concluded which named additional parties who, were the assertions proved, would have an interest in the real estate as beneficiaries of a trust. The court noted that the amended answer squarely presented to the court the issue whether the additional parties were necessary parties. The court stated that if there were persons who were not made parties to the suit and who were substantially interested in the subject matter, or the result, the court could not proceed to a final decree in the absence of such parties. The court’s discussion of the principles involved included the following:
“The rule in chancery pleading and practice is that all persons who are legally or equitably interested in the subject matter and the result of the suit must be made parties. 6 * * It is a general rule of equity that all persons should be made parties who are legally or beneficially interested in the subject matter of the litigation, and who will be affected by the decree, so as. to enable the court to dispose of the whole controversy. [Citation.] If the lack of parties is brought to the attention of the court, be it one of original or appellate jurisdiction, the court should not proceed further in the matter until the omission has been corrected, even though no objection is made by any party litigant. [Citations.]
Where a party has been omitted whose presence is so necessary that a final decree cannot be entered without necessarily affecting his interest, the court should not proceed to a decision of the case on the merits. The objection may be made by a party at the hearing, and the court will, upon its own motion, take notice of the omission and require the omitted party to be made a party to the litigation, even though no objection is made by any of the parties to the litigation. [Citations.] The objection may be made by a party at the hearing or on appeal or error, and the court will, upon its own motion, take notice of the omission and require the omitted party to be made a party. [Citation.] The objection of the nonjoinder of indispensable parties may be taken at the hearing or on appeal or error. [Citation.] This rule is inflexible, yielding only when the allegations of the bill disclose a case so extraordinary and exceptional in character as that it is practically impossible to make all parties in interest parties to the suit, and further, that others are made parties who have the same interest as have those not brought in, and are equally certain to bring forward the entire merits of the controversy as would the absent persons. [Citation.]
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The interest of absent parties must be determined by the issues presented by the pleadings and the evidence and not by the final decision in the case. The mere fact that the court decides the issues in such a way that the absent parties would have no interest in the subject matter of the suit does not control. Such parties, if they have, or might claim, a substantial and present interest, under the issues involved, are entitled to be heard. They are entitled to be present and to participate in the litigation of all questions affecting such interest.” 385 Ill. 414, 422-26 , 52 N.E.2d 1000, 1004-06 .
While the general principles set forth in the Oglesby case are applicable to the case at hand, the case of Hauser v. Power, 351 Ill. 36 , 183 N.E. 580 , is extremely close on its facts since it concerns an omission to make a mortgagee a party to litigation over title to real estate. One of the litigants, asserting a fee simple title, had executed a mortgage to his interest and that mortgagee was not made a party to the proceeding. When the case reached the supreme court it, apparently on its own motion, reversed and remanded for joinder of the mortgagee, stating:
“The decree must be reversed because of the non-joinder of the mortgagee to whom the mortgage of February 27,1931, was made. He is a necessary party and is not joined as a defendant. It is a fundamental principle in all proceedings, whether common law, statutory or equitable, that a person must have an opportunity of being heard before a court can render judgment against him. The bill attacks the title to the undivided half of the land included in the mortgage, and the mortgagee is entitled to his day in court, to notice and a hearing before a decree can be made which will deprive him of any part of the security pledged for the obligation for which the mortgage was given. The interest of the mortgagee is therefore involved in determining whether the mortgagor held the title to all the land mortgaged or to an undivided half of it, only. Where a party has been omitted whose presence is so necessary that a final decree cannot be entered without necessarily affecting his interests the court should not proceed to a decision of the case on the merits. The objection may be made by a party at the hearing, and the court will upon its own motion take notice of the omission and require the omitted party to be made a party to the litigation even though no objection is made by any party litigant. Stripe v. Yager, 348 Ill. 362 ; Hansen v. Swartz, 345 id. 609; Gaumer v. Snedeker, 330 id. 511; Mortimore v. Bashore, 317 id. 535; McMechan v. Yenter, 301 id. 508; Abernathie v. Rich, 229 id. 412.” Hauser v. Power, 351 Ill. 36, 39 .
In City of Chicago v. Zik, 63 Ill. App. 2d 445 , 211 N.E.2d 545 , the petitioners for leave to intervene were the lessees of a building which had been ordered destroyed as a result of building code violations. They had not been made parties to the proceeding in which the destruct order was sought. The appellate court there remarked: “Certainly the petitioners did have a direct interest in the outcome of litigation seeking demolition of the subject property since only by its continued existence could petitioners’ leasehold interests be safeguarded.” 63 Ill. App. 2d 445, 447 .
Mention should also be made of the case of Glickauf v. Moss, 23 Ill. App. 3d 679, 683 , 320 N.E.2d 132 , where the following quotation from Gaumer v. Snedeker, 330 Ill. 511, 515 , 162 N.E. 137 , was used:
“Whenever a party has been omitted whose presence is so indispensable to a decision of the case upon its merits that a final decree cannot be made without materially affecting his interests, the court should not proceed to a decision of the case upon the merits. The objection may be made by a party at the hearing or on appeal or error, and the court will upon its own motion take notice of the omission and require the omitted party to be made a party to the litigation even though no objection is made by any party litigant. Knopf v. Chicago Real Estate Board, 173 Ill. 196 ; Abernathie v. Rich, 229 id. 412; McMechan v. Yenter, 301 id. 508; Webster v. Jackson, 304 id. 569; Mortimore v. Bashore, 317 id. 535.”
And so it is with the interest of Germania in the property in question here. The injunction, mandatory in effect, will almost completely destroy the security for their mortgage. Only when the mobile home has a situs on a foundation with utility hookups and the appurtenances of permanancy does it have substantial value.
I disagree with the majority when they say that Germania’s presence in the case was unnecessary because of the doctrine of representation, that Germania’s interests were represented by the defendants McDaniel because their interests were the same. The interests of mortgagor and mortgagee are traditionally antagonistic. They are debtor and creditor. The interest of one must be carved from the interest of the other. Woe betides the mortgagor who assumes his interest to be that of the mortgagee and fails to make his payments when due. No better case could be found than the present to illustrate the point that the mortgagor cannot furnish proper representation to the mortgagee. With what vigor will the mortgagor defend the integrity of the property when his investment is *2,000 and that of the mortgagee is *13,000? The incentive in the mortgagor to properly defend the interest of the mortgagee is not present. Any idea that the representation would be given is refuted by the fact that the mortgage was never mentioned in the trial of this case, either in the pleadings or the evidence.
Here we have the owner of a 2/15ths pecuniary interest held to be representing the owner of 13/15ths of the pecuniary interest. The 2/15ths interest is a legal interest and will remain extant in the form of the lot. The 13/15ths interest is an equitable interest and would be all but destroyed as a result of the trial court’s order for injunction.
Germania should not, at least at this stage, be held to be untimely with their petition to intervene. The majority concedes that the record is silent as to when Germania first learned of the pendency of the action. The position of the majority now renders it impossible for Germania to address the question. It borders on the frivolous to state, as the majority does, that Germania stood by and gambled on the outcome and only sought intervention when the case went against their interest.
If there were in effect in Illinois a joinder of parties rule similar to Rule 19 of the Federal Rules of Civil Procedure (similar rules are in effect in about half of the States) the problem here would have been averted. Germania would be termed a necessary party and the obligation for their joinder would be upon the plaintiffs. Possible multiple actions would be avoided and the difficulties similar to that considered here would not arise.
For the foregoing reasons I would hold Germania to be a necessary and indispensable party and remand the case for such further proceedings as may be indicated after the pleadings are settled. The injunction case of Bruno v. Picchi, 99 N.Y.S.2d 207 (1950), a New York case relied upon by the majority, is not at all applicable. The outcome of the fracas over an easement in that case could in nowise affect the mortgagee of the property because the mortgage expressly recognized its existence.
Here, there is no apparent reason why Germania should not have been joined as a party. Their mortgage was a matter of record, as readily discoverable as the ownership of the premises in question. Moreover, they were easily available to the process of the court; their main office was located in the adjacent county of Madison and they maintained a branch office in St. Clair County itself. In my opinion no better case could be found to bring into play the provisions of Supreme Court Rule 26.1(1) (b) and (c) (Ill. Rev. Stat. 1975, ch. 110, par. 26.1(l)(b) and (c)). If that rule is to have any efficacy it should be applied in this case.