10 Colo. 46 | Colo. | 1887
The petition of Schoolfield claimed a lien upon all the property of the defendant'the Bassick Mining Company. The defendant Adams filed his answer and cross-bill, claiming a lien upon all the property. Temple-man, Holthoff and Jordi successively filed their respective petitions as intervenors, also, claiming on all the property. Subsequently Armstrong filed his petition as an inter-* venor, claiming a lien upon a part of the property only, viz., the Maine lode. The liens decreed the several lien claimants, with the exception of Armstrong, were upon all the property of the defendant, consisting of seven or more lodes, and the improvements thereon, including the Maine lode. The lien decreed the complainant Armstrong was upon the Maine lode only.
The leading error assigned, and the only'one argued by counsel for plaintiff in error, goes, not to the decree proper, establishing and decreeing the liens of the several
We think it equally plain that the defect of jurisdiction which we have pointed out was not cured by the fact that the jurisdiction of the court had attached to all the property under and by virtue of the petitions of the other lien claimants. Their petitions did not invoke the jurisdiction of the court in respect to the Armstrong claim. We do not see that the court had any greater or different jurisdiction than if the subject-matter of each petition had been tried and adjudicated separately. The same fundamental principles fix the limits of the power and authority of the court in the one case as in the other. Curtis v. Leavitt, 15 N. Y. 116.
Counsel contend that, considered as one suit, there was jurisdiction of the subject-matter, and that the order of sale is therefore not void, though irregular. Subject-matter is that which is offered for judicial decision. The subject-matter of the Armstrong petition was not the Maine lode, but his claim of lien upon the Maine lode. The subject-matter of the petitions of the other lien claimants was not the property mentioned in their petitions, but their claims of lien upon the property mentioned. Counsel, therefore, assume that which is contested when they say the court had jurisdiction of the
Section 2155 of the General Statutes is as follows: “The court may proceed to hear and determine said liens and claims, or may refer the same to a referee to ascertain and report upon said liens and claims, and the amount justly due thereon. Judgment shall be rendered according to the rights of the parties. The various rights of all the lien claimants, and other parties in any such action, shall be determined and incorporated in one judgment or decree. Each party who shall establish his claim under this act shall have a judgment against the party personally liable to him for the full amount of his claim so established, and shall have a lien established and determined in said decree upon the property to which his lien shall have attached, to the extent hereinbefore stated.” By this section “judgment is tobe rendered according to the rights of the parties,” and each party is to have a lien established and determined in said decree, “ upon the property to which his lien shall have attached.” The succeeding section provides that the court shall cause said property to be sold in satisfaction of said lien and costs of suit, as in case of foreclosure of mortgages.
Eor the reasons given we think the order of sale was not only irregular, but beyond the power and authority of the court, and void. To this extent the decree of the court below is reversed, and the cause remanded. As we are advised that there has been a sale under the decree, we are in doubt as to the present status of the case in the court below.
We therefore remand the case without direction, with a view of allowing all parties interested an opportunity to be heard.
Remanded.