205 F. 282 | 9th Cir. | 1913
Corey Bros. Construction Company, a Utah corporation, filed in the court below a bill to foreclose a mechanic’s lien upon an irrigation system, the property of the defendant Big Lost River Irrigation Company, an Idaho corporation. The American Trust & Savings Bank, now the Continental & Commercial Trust & Savings Bank, and Erank H. Jones, both of Illinois, trustees named in a deed of trust relating to bonds issued in connection with such irrigating system, were also made defendants. The Union Portland Cement Company of Utah intervened, and prayed for the foreclosure of a lien for material furnished through the complainant to the Big-Lost River Company.
Other defendants were Nephi and Ephriam Hansen, copartners as Hansen Bros., K. L.’Molen and R. E. Kutler, copartners as Molen & Kutler, J. W. Curd and N. Loss, copartners as Curd & Loss, K. L. Molen and Jesse Molen, copartners as Molen & Molen, David Chamberlain and Thomas Chamberlain, ■ copartners as Chamberlain Bros., Erank Hess, S. H. Walton, F. L. Pinney, William Mooney, and Frank H. Jones, who claimed liens as subcontractors under the complainant.
The hill prayed 'for a decree that the lien of complainant be fixed upon all the property of the Big Lost River Irrigation Company, that in default of payment of sums claimed the property of the defendant company be sold and the proceeds applied to the payment of the contract and lien, that a receiver be appointed, and that the interests of the defendants American Trust & Savings Bank and Jones he decreed to be inferior and subsequent to complainant’s claims.
As ibe result of trial a decree was made in favor of complainant for the amount of its claim, and in favor of the inter venor, awarding to them first liens and fixing their respective liens as ahead of those of the Bank & Trust Company, heretofore named, and superior to and prior to any of the claims or liens of the other defendants hereinbefore named.
Sale of the property of the Irrigation Company was ordered, unless payment was made by it or by any of the other defendants. Equity of redemption of the defendants was to be forever barred, and terms of sale were prescribed in detail, tlie purchaser to hold the property free from all the liens of all the parties to the suit.
From this decree, rendered December 27, 1912, the Continental & Commercial Trust & Savings Bank and Frank H. Jones, trustees, appealed. Appeal was allowed March 26, 1913. It does not appear that any of the other parties defendant against whom the decree is rendered join in the appeal, or that they or any of them were notified to appear, and that they or any of them had failed to appear, or, if appearing, had refused to join in the appeal. Such a situation compels us to order a dismissal of the appeal.
“We think there should be a written notice and due service, or the record should show his appearance and refusal, and that the court on that ground granted an appeal to the party who prayed for it, as to his own interest. Such a proceeding would remove the objections made to permitting one to appeal without joining the other; that is, it would enable the court below to execute its decree, so Jar as it could be executed, on the party who refused to join, and it would estop that party from bringing another appeal for the same matter. The latter point is one to which this court has always attached much importance, and it has strictly adhered to the rule under which this ease must be dismissed, and also to the general proposition that no decree can be appealed from which is not final, in the sense of disposing of the whole matter in controversy, so far as it has been possible to adhere to it without hazarding the substantial rights of parties interested.” Hardee v. Wilson, 149 U. S. 179, 13 Sup. Ct. 39, 36 L. Ed. 933; Sipperley v. Smith, 155 U. S. 86, 15 Sup. Ct. 15, 39 L. Ed. 79; Loveless v. Ransom, 107 Fed. 626, 46 C. C. A. 515; Provident Life & Trust Co. v. Camden et al., 177 Fed. 854, 101 C. C. A. 68; Ibbs v. Archer, 185 Fed. 37, 107 C. C. A. 141; Grand Island & W. C. R. Co. et al. v. Sweeney, 103 Fed. 342, 43 C. C. A. 255.
Holding, therefore, that we are without jurisdiction, the appeal will be dismissed, without prejudice to another appeal on a record not liable to the objections made to this.