27 S.D. 350 | S.D. | 1911
Lead Opinion
On May 12, 1908, the plaintiffs instituted an action to foreclose a mechanic’s lien making James D. Plardin and the Union Trust Company of Philadelphia, among others, defendants in the action. The complaint was in the usual form, and in the complaint it is alleged: “That the defendant Chicago, Burlington & Quincy Railroad Company, James D. Plardin, and the Union Trust Company of the City of Philadelphia claimed some estate, right, title, and interest in and to the above-described property, the exact nature of which is unknown to plaintiffs, but plaintiffs allege that said claim is inferior and subject to the claim of said plaintiffs.” The plaintiffs then prayed for judgment against the mining company for the amount of their- respective accounts; that all parties having miners’ liens against said above-described property might be brought in and made defendants or plaintiffs herein, as the case may require; that the said claims of the defendants Chicago, Burlington & Quincy Railroad Company, James D. Hardin, and the Union Trust Company of the city of Philadelphia may be adjudged inferior and subject to the liens and claims of the plaintiffs; and that said plaintiffs -may be adjudged to have a
On May 1, 1909, the court entered a decree in favor of the plaintiffs and interveners, establishing their liens and decreeing that said liens were concurrent, and further decreeing that the liens of the above-named parties were prior and superior to the lien, if any, of James D. Hardin and the Union Trust Company of the city of Philadelphia; further ordering a decree that the action be continued so far as the claim of James D. Hardin was concerned; further ordering a decree that the property described in the complaint be sold at public auction, and out of the proceeds of such sale the sheriff pay the plaintiffs, interveners, and the railroad company the amount found due them, and that, if there be
Then follows the usual judgment foreclosing a miner’s lien in favor of the defendant Hardin for $378,867.32 upon the prop
It was admitted that the only paper served on the Union Trust Company of Philadelphia in this action was. the original summons and complaint, and that the counterclaim of James D. Hardin was never served upon the Union Trust Company of Philadelphia. The defendant Hardin,- in opposition to said motion, submitted an affidavit of his attorney that “there was no adjournment of the Eighth judicial circuit court in and for Lawrence county, South Dakota, between July 9, 1909, and July 30, 1909,” that both of the judgments hereinbefore referred to were rendered at the same term by the said court. On February 10th the motion of the defendant Union Trust Company was heard, and it was ordered that the decision and decree be modified and changed as requested. From this order the defendant James D. Hardin has taken an appeal to this court, and assigns as error that the court erred in holding that it was without jurisdiction over the Union Trust Company to determine the status or priority of its mortgage with reference to the miner’s lien of the defendant Hardin, and in striking out the paragraphs hertofore referred to.
The only question presented, therefore, for decision in this case, is: Was the trust company concluded by the decree of the court entered foreclosing Hardin’s ,lien as against the property, and did the court err in striking from the Hardin decree the paragraphs hereinbefore set forth, adjudging that Hardin’s lien was prior and superior to the mortgage upon' the mining property of 'the Branch Mint Mining & Milling Company? It will be observed that the action was instituted by the plaintiffs Phillips and Cordelia A. O’Donnell to enforce miners’ liens against the property of the Branch Mint Mining & Milling Company; that the only paper served upon the Union Trust Company was the original summons and complaint in the state of Pennsylvania, and that said company never appeared in the action; that the mining company and Hardin stipulated that it should be decreed that the liens of the plaintiffs and interveners were prior and superior to the lien
[1] The summons and complaint having been served upon the defendant Union Trust Company, and it being alleged in the complaint that the plaintiffs’ liens were superior to the mortgage of the Union Trust Company, and that -company having failed to appear in the action, it, in effect, admitted the allegation of the complaint as to the superiority of the liens of the plaintiffs, and w-as therefore, concluded by the plaintiffs’ judgment. Southard v. Smith, 8 S. D. 230, 66 N. W. 316. The plaintiffs’ decree, therefore, being legal and valid and not being questioned by either party, need not be further referred to in this opinion. As we have' seen, the defendant Hardin sought by his counterclaim, or more properly, perhaps, cross-bill, to obtain a judgment foreclosing his lien, not only as against defendant mining company, but also -as against the 'Union Trust Company.
[2] The counterclaim o-f Hardin or cross-bill was served upon the mining -company, and the court thereby acquired jurisdiction to determine the validity of Hardin’s lien as against the mining company, and it seems to be conceded that Hardin’s decree, so far as it affected.the mining company, w-as binding and conclusive upon that company. It is contended by the appellant that, as the summons and complaint were properly served outside of the state upon the Union Trust Company at the commencement of the action, the court thereby acquired jurisdiction to determine the relative priority of the liens of the defendant Hard-in and the defendant Union Trust Company as -between them -as well as between them and the plaintiffs, both because of the express terms of the statute and -because of the very object and essential nature of the action itself. By section 2577 of the Political Code, then in force, it was provided that any person entitled to a lien under the article should make and file his -claim with a description of the property, and -concludes as follows: “Provided, that all lien claims for labor -performed or materials furnished shall be concurrent liens upon the property charged, and -shall be paid pro ■rata out of the -proceeds arising from the sales thereof, if the same
It is contended by the appellant that, while the liens referred to in section 2577 only include miners’ liens, by the terms of section 2578 the liens therein referred to include, not only miners’ liens, but any other liens that the parties may have upon the property. It is contended, however, by the respondent that the liens referred to in section 2578 only include miners’ lines, and do* not include the lien of the Union Trust Company under its mortgage or deed of trust.
It is urged by the appellant that the Legislature has defined the term “lien,” and that, therefore, the term as used in the sections referred to is controlled by the definition thus given. There is much force in this contention. But, while it is -true the Legislature has defined the term- “lien’ by section 2017 of the Rev. Civ. Code as “a charge imposed upon specific property, by which it is made security for the performance of an act,” the sections of the Political Code quoted from, in which the Legislature was dealing with the 'subject of miners’ liens exclusively, the term “lien” as therein used, it would seem, was intended only to apply to* a miner’s lien in both sections, for the law prescribing such procedure provides that all miners’ liens shall stand upon equal footing *and it will be noticed that by section 2578 “any person holding such lien may proceed to obtain a judgment, * * * and when any suit or suits shall be commenced thereon such lien 'shall continue until said suit or suits shall be finally determined and satisfied.” But, assuming for the purposes of this decision, without deciding as to whether or not -the term “lien’ as used in section 2578 refers to a miner’s lien only, the counterclaim or cross-bill of Hardin would
[3, 4] It seems to be well settled that a cross-bill by one defendant in an action as against a codefendant must be served upon such codefendant in order to give the court jurisdiction to determine the controversy between such defendants. It is elehientary in our system of government that no person can be deprived
[5 6]) In the absence, therefore, of some special provision defining specifically the proceedings to be had in cases of cross-bills, we must be governed by the proceedings as defined in chancery, and that in all cases, in order to give the court jurisdiction over the subject-matter, requires that the cross-complaint shall be -served upon the opposing party, and we think this rule is applicable -to proceedings to enforce mechanics’ and miners’ liens. Parties claiming such liens are required to present their claims to-the court, and they necessarily, therefore, -come in as interveners,, or, if made parties, by way of answer.
[7J The defendant -in an action in the first instance is only required to answer the complaint of the plaintiff, if made a party to the action. If not made a party, he may become such by filing his complaint in intervention, but he is not required to anticipate that some defendant in -the action will set up by way of counterclaim or cross-bill some claim which -deprives him of his property without notice that such a claim is made by his codefendant, and he is given an opportunity to answer such claim and make a defense thereto for the purpose of protecting his rights in the premises..
[8] It is quite clear, therefore, that the Union Trust Company was not bound by the action of the court in adjudging Hardin’s lien to be prior and superior -to the mortgage held by that com-, pany, in the absence of proof that the answer or cross-bill was served upon that company that it might have an opportunity to-defend against the claim so made. The Union Trust Company might be, and probably was, willing -that the small amount claimed by the plaintiffs should be adjudged to be superior and paramount' to the claims of the Union Trust Company, but it does not follow
In Smith v. Woolfolk, 115 U. S. 143, 5 Sup. Ct. 1177, the learned Supreme Court of the United States in its opinion says: “It is settled that one defendant cannot have. a decree against' a .codefendant without a cross-bill, with proper prayer, and process or answer, as in air original suit. Walker v. Byers, 14 Ark, 246; Gantt’s Dig. § 4559; Cullum v. Erwin, 4 Ala. 452; Cummings v. Gill, 6 Ala. 562; Shelby v. Smith, 2 A. K. Marsh. (Ky.) 504. It follows from the reason of this rule that if one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter. After a decree disposing of the issues and in accordance with the prayer of a bill has been made, it is not competent for one of the parties, without a service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subject-matter of the original litigation, by merely giving the new proceedings the title of the original cause. If his bill begins a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound; for the decree of a court rendered against a party who has not been heard, and has had no chance to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other court. Windsor v. McVeigh, 93 U. S. 274; Galpin v. Page, 18 Wall. 350; Jewell v. Iowa Land Co., 64 Minn. 531, 67 N. W. 639; White v. Patton, 87 Cal. 151. 25 Pac. 270.
In the case of White v. Patton, supra, a question very analogous to the one at bar was determined by the Supreme Court in
In the case of Corcoran v. Canal Co., 94 U. S. 741, cited by appellant, the Supreme Court of the United States in its opinion is careful to say “that adverse interests as between codefendants may be passed upon and decided; and, if the parties have had a hearing and an opportunity of ascertaining their rights, they are concluded by the decree as far as it affects rights presented to the court and passed upon by its decree.” Of course, that part of the opinion is very material, “and, if the parties -have had a hearing and an opportunity of ascertaining their rights, the}' are concluded by the decree,” etc.
Appellant seems to rely on the case of Stearns v. Wright, decided by this court and reported in 13 S. D. 544, 83 N. W. 587, but that case does not sustain the appellant’s position." The defendant the German American Eoan & Trust Company by cross-complaint sought and were granted relief against the defendants Wright. In another action it was claimed that the decree awarding relief to the German American Eoan & Trust Company was void because the answer was not served on the defendants Wright This court held, however, that it did not affirmatively appear that the Wrights were not served with a cross-complaint, and, it being a collateral proceeding, the court was required to hold in support of the judgment of the court below that it would be presumed that the cross-bill had been properly served. Had a motion been properly made in the original action, and it had affirmatively appeared that the Wrights were not served with the cross-complaint,
In the case at bar, however, it is conceded that the cross-bill of Hardin was not served upon the defendant the Union Trust Company; hence the question of presumption does not arise in this case. It is difficult, therefore, to see upon what theory the Union Trust Company could be bound by an answer or cross-complaint filed by Hardin in the suit by plaintiff against himself and others, when the Union Trust Company had had no opportunity to defend against the claim of Hardin and had no notice, so far as the record discloses, that he was attempting to obtain a judgment against it, which would practically cut off its claim as trustee for an amount of over $144,000, without notice and without an opportunity to defend against such claim; Hardin’s judgment being for an amount of over $378,000 which was adjudged to be a prior and superior lien to the lien of defendant, and which would necessarily have the effect to- render the security held by the trust company comparatively valueless.
We are of the opinion, therefore, that the circuit court was clearly right in striking out of Harlin’s judgment or decree those provisions, of the same that sought to establish the priority of Hardin’s judgment as against said company.
Finding no error .in the record, the judgment of the court below and order appealed from are affirmed.
Concurrence Opinion
(concurring specially). While concurring in the result reached by my colleague as announced in the foregoing opinion, I base my" concurrence solely upon the grounds that the word “lien,” as used in section 2578 of the Revised Political Code, refers solely to miners’ liens, and that we must look to other authority for the right to join mortgagees or trustees in an action of
Dissenting Opinion
(dissenting). In this state a mortgage is embraced by the statutory definition of the word “lien.” Rev. Civ. Code, §§ 2017, -2021, 2022. The statute relating to miner’s liens provides that, when a suit is commenced to enforce such a lien, “all persons claiming liens upon the property charged shall be made parties to such action or proceeding and the rights of all parties therein shall be determined by the court.” Rev. Pol Code, § 2578. The word “liens” should be given its statutory meaning. Nothing in the context justifies any other conclusion. On the contrary, the declaration, “and the rights of all parties therein (in the property charged) shall be determined by the court,” plainly indicates the intention to have liens of every description considered. Without considering all charges upon the -property, the rights of none therein can be properly determined. The operation of the statute cannot be restricted -to miners’ liens without interpolating “miners” before the word,“liens” or “provided for in this act” after such word. So I conclude that,- when an action is commenced to enforce a miner’s lien, all persons having liens of any description upon the property charged are proper if not necessary parties.
Our Code of Civil Procedure “establishes the law of this state respecting the subjects to which it relates.” Rev. Code Civ. Próc. § 3. In all cases provided for therein, all statutes, laws, and
Having received stjch notice, I think respondent was bound by the judgment'of the circuit court that its application to have such judgment modified, based as it was alone on the ground of want of jurisdiction, should have been denied, and that the order appealed from should be reversed.