158 P. 448 | Utah | 1916
Lead Opinion
On November 29, 1913, the plaintiff commenced this action against George H. and A. Parfitt, as co-partners, Thomas A. Davis, West Temple Terrace Company, a corporation, and Graham Lawrence, to foreclose a certain contract of purchase, whereby West Temple Terrace Company, hereinafter called the company, purchased from the plaintiff a certain parcel of real estate, which is specifically described both in the complaint and in said contract of purchase.
It is, in substance, alleged in the complaint that on the 21st day of November, 1910, said company entered into a contract with the plaintiff, whereby it purchased the real estate described therein for the sum of $1,200, of which sum $200 was paid in cash and the remainder said company agreed to pay in monthly installments of twenty dollars each, commencing with the month of January, 1911; that said contract was duly recorded in March, 1911; that it was therein provided that in case default should be made by said company in making any of said monthly payments, the plaintiff ‘-‘was authorized to declare the whole amount' due and payable at once,” and that thereafter the interest on said indebtedness should be increased from eight to twelve per cent, per' annum; that prior to the 15th day of March, 1911, said company made default on its monthly payments, and that the plaintiff then elected to, and did, declare the whole amount due as in said contract provided. It is further alleged that on July 5, 1913, the defendants George H. and A. Parfitt, Dams and a number of others, obtained judgments'in an action against said company for the foreclosure of certain mechanics’ liens against the property in question; that said defendants George H. and A. Parfitt and Davis, by reason of said judgments, claimed some interest in the real estate described in said contract, but that such interests are inferior to plaintiff’s lien under said contract for the reason that said contract was given for the purchase price of the real estate in question. The amount due on the contract was alleged to be $980, with interest at twelve per cent, from March 15, 1911, and plaintiff demanded the sum of $250 in addition as an attorney’s fee.
"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff.”
It is generally held by the courts that under such a statute all who claim an interest in the premises upon which liens are claimed by the parties claiming such liens are proper defendants, notwithstanding that their liens may be prior and paramount. It is, however, also generally held that they are not indispensable parties to such actions.
True, one may bring an action upon a judgment and recover, but he may not bring a second action upon the original cause of action, as was done here. Then again, it is not at all likely that a court of equity would permit a claimant to exhaust the property or the fund by making unnecessary costs in bringing successive actions. Nor would any court be auth
We have not discussed the assignment relating to the overruling of the demurrer, for the reason that, in our judgment, the defect urged by counsel against the complaint did not sufficiently appear upon the face of it to be reached by demurrer. Besides, we deem it quite as well to dispose of the case upon the whole record.
'In view of the present state of the record the other assignments are really not before us for review, and for that reason we express no opinion upon them.
The judgment of the district court by which the plaintiff was awarded the sum of $250 as an attorney’s fee is therefore-reversed, and the cause is remanded to the District Court of Salt Lake County, with directions to set aside its findings of fact and conclusions of law by which it allowed the plaintiff said sum of $250 as an attorney’s fee, and that it enter an order or judgment, dismissing the complaint filed in this action as against the appellants George H. and A. Parfitt, and that it enter judgment requiring the plaintiff to repay the said appellants said sum of $250, with interest and costs. Appellants to recover costs on this appeal.
Rehearing
On Application for Rehearing.
Counsel for respondent has filed a petition for a modification of the judgment. In view of the very unsatisfáctory
The judgment of the District Court by which the plaintiff was awarded the sum of $250 as an attorney’s fee is reversed, and the cause is remanded to the District Court, with directions to set aside its findings of fact and conclusions of law upon that question, and that it enter judgment disallowing the plaintiff any attorney’s fee in this action; that in all other matters the cause is remanded to said court, and it is directed to make disposition of all matters in accordance with the evidence before it. Appellant to recover eosts.