75 Cal. 332 | Cal. | 1888
Lead Opinion
—This is an appeal from an order after final judgment.refusing a writ of assistance.
Robert Chalmers in his lifetime executed a mortgage upon certain premises in El Dorado.County; subsequently his wife Louisa declared a homestead upon a portion of the same premises.
Chalmers.departed this life, and an action to foreclose the mortgage was brought against the executor and executrix of his last will, viz., against George Chalmers and Louisa M. Chalmers, as executor and executrix thereof.
Louisa Chalmers, the widow, was made a party defendant as executrix, but not in her individual capacity.
The executor and executrix set up the fact of the declaration of homestead by the latter, and the court found the existence of the homestead as a fact, and that it was subsequent in time and subject to the lien of the mortgage.
A decree was entered in favor of plaintiff, under which
' The court below denied the writ upon the grounds that Mrs. Chalmers was not. individually a party to the foreclosure suit, and was not made such, or concluded by the answer made in her representative capacity, setting up the homestead, or by the decree rendered therein.
It is well settled that a judgment for or against a party in one right cannot affect him when acting in another right. Thus a plaintiff suing as administrator of his wife is not affected by a judgment against himself, in her lifetime, in an action to which she was not a party. (Blahey v. Newby, 6 Munf. 64.) “A decree against one as administrator, on a bill to compel the delivery of slaves claimed as a gift from the intestate, will not conclude his rights as a creditor, on a bill by him against the former plaintiffs, to set aside the gift conveyance for fraud.’’ (Freeman on Judgments, sec. 156, and cases cited.)
Louisa Chalmers was sued as the executrix of the last will of her deceased husband; as such she could only avail herself of such defenses to the foreclosure suit as would have existed in favor of her testator had he been living and a party to the action; and had he been living and a party defendant he could not have concluded by a defense or want thereof his wife’s right to the homestead. Such result could only be reached, if by action, in a proceeding to which she was a party. (Revalk v. Kraemer, 8 Cal. 65; 68 Am. Dec. 308; Revalk v. Kraemer, 8 Cal. 75; Van Renegan v. Revalk, 8 Cal. 76; Cook v. Klink, 8 Cal. 347; Stoops v. Woods, 45 Cal. 439.)
It is true a party may be before the court in two or more capacities, and in Corcoran v. Chesapeake Canal
But it is claimed that defendant did, in effect, make herself individually a party to the action, by setting up the homestead right when sued as executrix.
The code specifies but two methods by which, after the commencement of an action, new parties may be brought in; one is by an order of the court and the other by complaint of intervention. No such order was made or proceedings had in this case; hence we conclude she was not individually a party to the cause.
It may well be that a party who voluntarily files an answer in a cause without an order of court making him a party defendant, and who goes to trial upon the issues made by his answer to the complaint, will be concluded by the judgment rendered on the trial of such issues, and estopped from denying that he was a party to the action. But in the present case we search the decree in vain for any adjudication of defendant’s homestead rights.
■ The conclusion reached by the court below was “that Mrs. Chalmers, now Mrs. Hardie, never was a party to this action, .and therefore the judgment and decree do not affect her homestead right, and being in possession under the homestead right, she is rightfully in possession.”
Sharpstein, J., McFarland, J., Temple, J., Thornton, J., and McKinstry, J., concurred.
Dissenting Opinion
dissenting.—I dissent. It is true that Louisa M. Chalmers was not, technically speaking, a party defendant in the action, but she voluntarily set up her individual rights in the property, and caused the same to be litigated. Her homestead right was set forth in detail. It was treated as an issue in the case. The trial proceeded upon the theory, by all the parties, that her individual rights were in controversy, and the findings of the court upon that matter were as full as the allegations of the answer. Her individual right was not necessarily or even properly in the answer as a part of the defense made by the defendants in their representative capacities. The estate could not in any way be benefited by the determination of the homestead rights of Mrs. Chalmers; on the contrary, if her homestead right had been established (the court found that plaintiff's mortgage was a lien upon the property described in said declaration of homestead) the estate would have lost a fund which otherwise would have been devoted to a payment of the debts. She therefore, in effect and in fact, became a party to the suit in her individual capacity; her rights were determined, and I think she was bound by the decree rendered in the case. If the name Louisa M. Chalmers had been ’ repeated in the title of the cause without the addition of the official designation “ executrix,” there can be no doubt that judgment would be binding upon her. “A nominal .but not substantial difference in parties does not effect the estoppel. The general rule that a judgment of a court having jurisdiction of the subject-matter and the parties and the process, and rendered directly upon the point in question, is conclusive between the same parties, is not complied