Cadle v. McLimans

Citation23 Wyo. 515,153 P. 901
Decision Date04 January 1915
Docket Number819
PartiesCADLE v. McLIMANS
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Sheridan County; HON. P. W. METZ Judge.

Action by Harry A. McLimans against Nettie Harmiston and S. P Cadle. There was judgment for plaintiff and defendant brings error. Heard on motion to dismiss and upon the merits. The material facts are stated in the opinion.

Reversed and remanded with directions.

F. W Byrd, for plaintiff in error.

Plaintiff in error, Cadle, has an appealable interest, as he was made a party defendant below where relief was sought against him affecting a substantial right. (Baldwin v. Foss, 14 Neb. 455; State v. Cranney, 71 P. 50.) No personal judgment was rendered below against defendant, Harmiston; no garnishment proceedings were instituted to reach the funds in Cadle's possession; the motion to dismiss and to tax costs in this court under Comp. Stats. 1910, Sec. 5110, is premature. Considering the controversy on the merits no cause of action was stated against defendant, Cadle, nor do the facts justify a recovery against him. McLimans urged Cadle to accept payment in order to stop payment of interest on the mortgage; Cadle undertook to release the mortgage, but the recorder would not permit Cadle to release without a power of attorney; it was not alleged that a tender of charges was made by McLimans to Cadle, and no cause of action under Section 3696 was stated. (Gurskey v. Kelpin, 85 N.W. 558; Madder v. Plano Mfg. Co., 97 N.W. 843.) It was error to enter a personal judgment for the amount of the penalty in the absence of personal service on the mortgagee. (Pennoyer v. Neff, 95 U.S. 714; Cooley on Const. Lim. (6th Ed.), p. 498; Belcher v. Chambers, 53 Cal. 635; Galpen v. Page, 18 Wall. (U.S.) 350; Brown v. Campbell, 100 Cal. 641; Graham v. Spenser, 14 F. 606; Manchester v. McKee, 9 Ill. 520; Jones on Evidence, Sec. 623; Black on Judgments, Sec. 904; Pinney v. Providence Loan &c. Co., 106 Wis. 396, 50 L. R. A. 577; Cooper v. Reynolds, 10 Wall. (U.S.) 308.)

Gogerty & McNally, for defendant in error.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

ON THE MOTION.

The plaintiff in error has no appealable interest and was not prejudiced nor injuriously affected by the judgment; he held the funds in a trust relation. He was joined as a party for the purpose of determining the extent of his authority, as agent for defendant, Harmiston. The fund was paid to Cadle under a belief that he had authority to cancel the mortgage. Defendant in error was entitled to recover the penalty prescribed by Section 3696, Comp. Stats. Plaintiff in error has no reason to call upon this court to set aside a judgment which does not affect him. (2 Cyc. 628; 2 Standard Enc. Pro. 194, 198 and 191; 2 Ruling Cas. L., Sec. 33, p. 52; 2 Cyc. 631; 2 Ruling Cas. L. 52, 53 and 54; 2 Standard Enc. Pro., pp. 200 and 201; Poundstone v. Baldwin, 145 Ind. 139, 44 N.E. 191; Penn Mutual Life Insurance Co. v. Creighton, 51 Neb. 659, 71 N.W. 279.) He was a mere stakeholder without personal interest. (Hall v. Jack, 32 Md. 253; 2 Cyc. 636.) Defendant Harmiston should have been made a party to this appeal. (American Loan & Trust Co. v. Clark, 83 F. 230, 27 C.C.A. 522; In re. Castle Dome Mining & Smelting Co. (Cal.), 3 Cal. Unrep. 1, 18 P. 794; Kahn v. Hollis (Ga.), 53 S.E. 95; Bower v. Thomas, 69 Ga. 47; Michigan Mutual Life Ins. Co. v. Frankel (Ind.), 50 N.E. 304; Miles v. Lackey (Kan.), 63 P. 738; Kaufman v. Preston (Ind.), 63 N.E. 570; Anderson Glass Company v. Brakeman (Ind.), 20 Ind.App. 226, 47 N.E. 937.)

ON THE MERITS.

Plaintiff in error has no right to allege in his own behalf defenses which could be alleged by his co-defendant only. An attachment or garnishment was not indispensable to acquire jurisdiction over the fund. (Bragg v. Gaynor (Wis.), 55 N.W. 919; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.)

BEARD JUSTICE.

This case has been submitted on the merits subject to a motion by defendant in error to dismiss the proceedings in error. We will first consider the motion. The grounds therefor are that plaintiff in error has no appealable interest in the cause; was not prejudiced or injuriously affected by the judgment, and was not aggrieved thereby. Plaintiff in error was made a defendant in the district court and in the petition relief was prayed against him, and by the order and judgment of the district court he was required to forthwith pay into court a certain sum of money then in his possession, and adjudged to pay his own costs in the case. That order and judgment he alleges was erroneous, and he seeks a reversal thereof. Having made him a defendant and having prayed for and obtained relief against him, defendant in error is not in position to claim that plaintiff in error has no appealable interest in the cause, or that he is not prejudiced or aggrieved by the order and judgment. Defendant cannot hold his judgment against plaintiff in error and at the same time deny him the right to appeal from that judgment. In other words, he cannot insist on plaintiff in error complying with the order and judgment without at the same time conceding to him the right to contest the validity of the order and judgment by proceeding in error in this court. (Ricketson v. Compton, 23 Cal. 637-650; Renner v. Ross. Adm'r., 111 Ind. 269, 12 N.E. 508; State v. Cranney, 30 Wash. 594, 71 P. 50.) The motion to dismiss is denied.

The action in the district court is entitled "Harry A McLimans, plaintiff, vs. Nettie Harmiston and S. P. Cadle, defendants." The facts of the case as we understand them from the record are that on August 23, 1909, plaintiff purchased from one Bauman two lots upon which there was a mortgage in favor of defendant Harmiston for $ 200, which plaintiff assumed and agreed to pay, giving his note to her, which note contained the following statement: "This note is given in lieu of a note heretofore given by J. A. Bauman and wife and secured by mortgage." The Bauman note and mortgage were left in a bank, and afterwards, by direction of Harmiston, the claim was placed in the hands of defendant Cadle, who was and is an attorney at law. But whether he received the original note or only a copy of it from the bank does not clearly appear, nor is the evidence satisfactory as to what became of it, but tends to show that it was lost. It was long past due when plaintiff purchased the lots and gave his note for $ 200 to defendant Harmiston and which became due March 1, 1910. The deed to plaintiff for the lots was acknowledged before Cadle, and it appears that he retained possession of the mortgage and plaintiff's note, and on March 28, 1911, plaintiff paid to Cadle the amount due thereon ($ 230) and received his note, having written thereon, "Paid in full Mch. 28, 1911," and signed "S. P. Cadle." He also received from Cadle the mortgage and a copy of the Bauman note, each having written thereon and signed by defendant Cadle as attorney for Harmiston, a statement that they were fully paid and satisfied. It appears that Cadle was under the impression at the time that he as the attorney of Nettie Harmiston could cancel the mortgage by an entry on the margin of the record; but when he appeared for that purpose the clerk refused to allow him to do so without a power of attorney from the mortgagee. He informed plaintiff of that fact and endeavored to secure a release from the mortgagee, but was then and ever since has been unable to locate her or to hear from her, and he still retains the money. Plaintiff testified that Cadle told him that he was attorney in fact for Mrs. Harmiston. That Cadle denied. Plaintiff also testified that at several times, when he inquired about it, Cadle told him he had not been able to locate Mrs. Harmiston. The relief sought against the defendant Harmiston, who was a non-resident of the state and was served by publication and made default, was to have the mortgage indebtedness decreed paid, the mortgage satisfied of record and to recover one hundred dollars, the penalty provided by Section 3696, Comp. Stat. 1910, for the failure of the mortgagee to cancel the mortgage of record. The relief sought against defendant Cadle, who appeared and filed his separate answer, will perhaps best appear by...

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  • Clarke v. Shoshoni Lumber Company
    • United States
    • United States State Supreme Court of Wyoming
    • April 15, 1924
    ...by the trustee, and that bondholders were not parties, if bondholders were parties they are entitled to relief, Chap. 305 C. S.; Cadle v. McLimans, 23 Wyo. 515; they indispensable parties, Becker v. Hopper, 23 Wyo. 209; Wyman v. Quayle, 9 Wyo. 326; Hauser v. Hoffman, 32 Mo. 334; Coe v. Ritt......

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