240 F. 359 | 8th Cir. | 1917
The petitioner asks for a modification of the decree rendered by this court at the May term, 1915 (225 Fed. 693, 140 C. C. A. 567), so far as it adjudges that, upon the payment by Mrs. Mellon of all liens declared by the decree to' be superior to her claims, she should become the absolute owner of ,the lease and building, free from the terms of the lease, and the claim of all parties to the action. This petition was filed at the December term, 1916.
The petitioner bases her claim upon two grounds: First. That the court may, at any time, after the term at which the decree was rendered has expired, amend its decree by a nunc pro tunc order. Second. That this part of the opinion of the court was absolutely void because not within the issues raised by the pleadings.
' The main ground upon which counsel rely is that this part of the decree was absolutely void, as it was not within the issues raised by
“During tlie demised term no mechanics’ liens for improvements shall be put upon the demised premises, and in the event liens should be filed thereon, the lessee was to pay the same off within thirty days after final judgment, ánd if she failed to do so, the lessor should have the right to pay the same off, and the amount thus paid should be added to the rent, and if the default in the payment of such sums and the rent cpntinues for three months after they become due, the lessor has the option to declare the lease terminated, and if*362 tibe forfeiture is on account of any mechanics’ liens, the improvements shall also be forfeited without compensation therefor.”
It was charged that these provisions of the lease had all been violated, and, while the specific relief asked was for a foreclosure of her liens, the bill also contained a prayer for general relief.
It also appeared from the record that it was claimed that the value of the mortgaged premises was insufficient to pay off the mortgage and mechanics’ liens, which latter had been assigned to the trust company, the mortgagee, and the court, having found this to be true, appointed a receiver to collect the rents and profits of the premises, pending the litigation, in order that they may be applied to the trust company’s claims. In addition to these debts, there was due to Mrs. Mellon a large sum of money for rent of the ground, and for taxes, which Miss Patterson had failed to pay. It therefore appeared that she had in fact po interest whatever in the premises, and, if Mrs. Mellon paid off the prior liens, it would be a useless expense to have a. foreclosure sale, and that a strict foreclosure would be to the interest of all, relieving Miss Patterson of a deficiency decree, if the premises should, upon a sale, sell for less than the amount due by her to all the parties. That this would be so appeared from the record as a certainty. That under the prayer for general relief the court has the power to grant all the relief, which the allegations in the bill warranted, has been expressly determined in Gibbs v. Alger, Smith & Co., 201 Fed. 47, 119 C. C. A. 379, decided by this court. In that case an action had been brought in the district court of the state of Minnesota to remove a cloud on plaintiff’s title to certain lands. A statute of .the state of Minnesota permitted a person in possession of lands to maintain an action to determine adverse claims thereto. The prayer of the bill was:
“That plaintiff be adjudged tibe owner in fee of said lands, and that his title thereto be quieted as against the claims of said defendants. * * * That the defendants Frederick L. Gilbert and Edward T. Buxton be adjudged and held to have no right, title, interest, estate, or lien upon said lands, and that the plaintiff may be adjudged the absolute owner, free from all claims, right, title, interest, estate, or lien in and to said lands as against each and all of said defendants, and that plaintiff may have all other proper relief in the premises,” etc.
The district court of the state held that, as the allegations in the petition were sufficient to entitle the plaintiff to the relief under the statute to determine adverse claims, although the bill itself was drawn for the purpose of removing clouds on plaintiff’s title, and that was the specific relief • prayed, he was entitled, under the prayer for general relief, to have the adverse claims under the statute, determined. Upon appeal to the Supreme Court of Minnesota this decree was affirmed. Thereafter an action was instituted in the national court for the district of Minnesota, by the unsuccessful litigants in the state court, the contention being that the action in the state court was to' remove the cloud on the title, and was not an action to determine adverse claims under the statute, and that, as the decree of the state court went beyond this prayer for relief, its judgment was without jurisdiction, in
“If the court, on examining this petition, found the allegations and a prayer for relief strictly authorized by the statute to determine adverse claims and due service, it had jurisdiction of both the subject-matter and the persons, and, if it proceeded to grant such relief, it was at most erroneous. Under such circumstances, the decision was a finality” — citing authorities.
In Omaha Ry. v. Cable Tramway Co. (C. C.) 32 Fed. 727, it was claimed that the Circuit Court was without jurisdiction to assess damages in an action only praying for an injunction. Mr. Justice Brewer, then Circuit Judge, denied this contention, upon the ground that there was also a prayer for general relief in the bill. He said:
“Again, inasmuch as the prayer for relief contains also the general prayer for other and further relief, 'it is familiar law that the court may award such other relief as is justified by the facts stated in the bill, and may fairly have been considered within the contemplation of the parties in the litigation.”'
See, also, Lockhart v. Leeds, 195 U. S. 427, 437, 25 Sup. Ct. 76, 49 L. Ed. 263; Salton Sea Cases, 172 Fed. 792, 97 C. C. A. 214; McCormick v. Oklahoma City, 204 Fed. 921, 122 C. C. A. 215.
In Standard Oil Co. v. Missouri, 224 U. S. 270, 285, 32 Sup. Ct. 406, 410 (56 L. Ed. 760, Ann. Cas. 1913D, 936) a writ of quo warranto had been filed by the state of Missouri in the Supreme Court of that state against the Standard Oil Company, and after a hearing the court sustained the prayer for the writ, and imposed a fine of $50,000 on the Standard Oil Company, although the petition asked for no penalty. It was claimed that, as there was no prayer for a penalty in the petition, the judgment imposing it was void, depriving the company of its property without due process of law. But this contention was by the Supreme Court overruled, the court saying:
“The facts stated fix the limit of the relief that can be granted. While the judgment must not go beyond that to which the plaintiff was entitled on proof of the allegations made, yet the court may grant other and different relief from that for which he prayed.”
Van Vleet on Collateral Attack, § 256, says:
“If the object of the petitioner can be ascertained from the allegations, no matter how defective they are, or how many necessary ones are omitted — the court having power to grant the relief sought, and having the parties before it — the judgment is not void. * * * The cases all agree that, if the allegations tend to show each material fact necessary to constitute a cause of action, they will shield the judgment from collateral attack.”
We are of the opinion that the court is without jurisdiction to grant the relief prayed, and it is denied.