Clarke v. Shoshoni Lumber Company

• Decision Date: 15 April 1924
• Docket Number: 1132
• Citation: 224 P. 845,31 Wyo. 205
• Parties: CLARKE v. SHOSHONI LUMBER COMPANY
• Court: Wyoming Supreme Court

224 P. 845

31 Wyo. 205

CLARKE v. SHOSHONI LUMBER COMPANY

No. 1132

Supreme Court of Wyoming

April 15, 1924

ERROR to District Court, Fremont County; CYRUS O. BROWN Judge.

Action by the Shoshoni Lumber Company against the Big Horn Power Company and others to foreclose a mechanic's lien. There was judgment for plaintiff. Later defendant, Ella R. Clarke moved to open her default, and for leave to defend, which motion was denied and movant brings error.

Judgment affirmed.

P. B Coolidge, F. Chatterton and Lindsey & Larwill for plaintiff in error.

Plaintiff in error is a party within Chap. 305 C. S., she comes in as the owner and holder of some of the bonds and is agent for other holders; her application is resisted upon inconsistent grounds, viz: that bondholders were represented 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 were indispensable parties, Becker v. Hopper, 23 Wyo 209; Wyman v. Quayle, 9 Wyo. 326; Hauser v. Hoffman, 32 Mo. 334; Coe v. Ritter, 86 Mo. 277, Landau v. Cottrill, 159 Mo. 308; bondholders are not bound by the Judgment 27 Cyc. 354; McClair v. Huddart (Colo.) 41 P. 832; persons joined as unknown defendants may move the reopening of a judgment, Brown v. Brown, 86 Tenn. 277; Boeing v. McKinley, 44 Minn. 392, 46 N.W. 766; Buskirk v. Ferrell, 51 W.Va. 198, 41 S.E. 123; the application for relief was in fact a petition, 4654 C. S.; appearance of Boysen was a waiver of summons, Branden v. Hoffman, 46 O. S. 639; Fitzgerald v. Cross, 30 O. S. 444; right to reopen a judgment is provided by 4650-4659; a valid defense being shown, Bank v. Anderson, 6 Wyo. 518; the judgment and attempted sale were void; the lien does not extend to chattels not part of the real estate, McMahon v. Vickery, 4 Mo.App. 225; Mill Co. v. Christophel, 60 Mo.App. 106; the lien may attach to the building as distinct from the land under certain circumstances, such as a prior mortgage on the land, 3801 C. S.; Seibel v. Siemon, 52 Mo. 363; this gives a right of removal, or if removal is impracticable, recovery of damages, Ranson v. Sheehan, 78 Mo. 668; Ambrose Co. v. Gapen, 22 Mo.App. 397; if not removable the lien attaches to the land, Johnson v. Co., 19 Mont. 30, 47 P. 337, and a sale of the property, Bradley v. Simpson, 93 Ill. 93; Fidelity Co. v. Dennis, 93 Va. 504; Grainger v. Co., (Ky.) 49 S.W. 447; Joralman v. McPhee, (Colo.) 71 P. 419; a dam affixed to land is real property, Flax Co. v. Lynn, 147 Mass. 31; a void judgment may be attacked at any time, 23 Cyc. 697; affidavit for constructive service was insufficient, 4367-68 C. S., 21 R. C. L. 1296; Bothell v. Hoellwarth, 10 S.D. 491; jurisdiction depends upon the fact of service, White v. Hinton, 3 Wyo. 754; publication insufficient, 4433 C. S., Calkins v. Miller, 55 Neb. 601; an unauthorized appearance by an attorney does not give jurisdiction, Critchfield v. Porter, 3 Ohio 519; death of a party prior to judgment is ground for vacation, 4650 C. S.; a successor in interest of deceased' may apply for vacation, Holt v. Cheyenne, 20 Wyo. 212; Ramsey v. Johnson, 8 Wyo. 476; plaintiff in error had no notice of the action and is entitled to relief, 4651 C. S., service by publication being in derogation of the common law should be strictly construed, Parker v. Iron Wks., 3 O. C. C. (N. S.) 547; Boysen is not a purchaser in good faith; 23 Cyc. 901; Roberts v. Price, 2 O. D. 581; plaintiff in error is entitled to relief.

W. E. Hardin and Haggard & O'Mahoney for defendant in error.

Plaintiff in error was joined as an unknown bondholder but not a party against whom judgment was rendered without service other than publication as specified in 5924 C. S.; where bondholders are numerous the trustee is their representative and a judgment against him is binding, Shaw v. R. R. Co., 100 U.S. 65, 25 L.Ed. 757; Toler v. Co., 67 F. 168; Pollitz v. Co., 53 F. 210; Ry. Co. v. Kerr, 153 Ill. 183, 38 N.E. 638; the Missouri cases cited by plaintiff in error differ on the facts; plaintiff has not shown it is entitled to relief under 5924 C. S.; Boysen did not waive notice by appearing on the motion as to anything, except its nature and contents; unknown bondholders whose death had occurred were represented by the trustee; judgment against improvements only is not void; as they might be sold, 4684 C. S., Pickens v. Co., 31 Neb. 585, 48 N.W. 473; Shull v. Best, 93 N.W. 753; Appraisal was unnecessary; the affidavit for publication was sufficient; the appearance of Fourt was authorized; opening of the judgment would not authorize a vacation of the sale, 5925 C. S.; Boysen was a purchaser in good faith, 23 Cyc. 901; 5925 C. S., Scudder v. Sargent, 17 N.W. 369; Bank v. Haynes, 56 Neb. 394, 76 N.W. 867; plaintiff purchased the bonds after the property had been sold, with full knowledge of the sale at five cents on the dollar, she has shown no equities that warrant opening of the case; affidavit for publication in the language of the statute is sufficient, Washburn v. Buehavan, 52 Kan. 417; Taylor v. Coots, 32 Neb. 30; Calvert v. Calvert, 15 Colo. 390; Ervin v. Milve, 17 Mont. 494; where the statute provides that the person on whom service is to be made cannot after due diligence be found within the State, and that fact appears to the satisfaction of the court, service by publication may be ordered, McCracken v. Flannagan, 127 N.Y. 493, 24 Am. St. Rep. 481.

P. B. Coolidge, F. Chatterton and Lindsey & Larwill in reply.

No rights can be acquired under a void judgment, for the reason that it is not enforceable; the dam is not removeable; a notice of motion not being process its issuance and service is not jurisdiction, Younglove v. Steinman, 80 Cal. 375; Cheatham v. Howell, 14 Tenn. 310; an appearance is waiver of notice, Mitter v. Coal Co., 28 Wyo. 439; Jennings v. Pearce, 101 Ala. 538; Cahill Co. v. Hayes, 97 Kans. 740; Acock v. Halsey, 90 Cal. 215; Braden v. Hoffman, 46 O. S. 639; Major v. Rand, 72 Ill.App. 279; judgment does not become final until application for new trial is disposed of, Luther v. Bank, 22 Wyo. 302; 5924 C. S. is complete in itself, 5932 provides procedure for vacation of judgment for death of one of the parties before judgment.

BLUME, Justice. POTTER, Ch. J., and DISTRICT JUDGE BURGESS, who sat in place of KIMBALL, J., concur.

OPINION

BLUME, Justice.

This case was originally brought in the district court of Fremont County, Wyoming, on March 3, 1911, by the Shoshoni Lumber Company v. The Big Horn Power Company, the Chicago Title and Trust Company, and Charles H. Jackson, as trustees, and certain unknown holders of bonds issued by the Big Horn Power Company, for the purpose of foreclosure of a lien on the part of said Lumber Company for material furnished the said Big Horn Power Company. Said bond holders were owners of 700 unregistered bonds of the Big Horn Power Company, of the denomination of $ 500 each, secured by a trust deed given to said trustees on the real property of said company in Fremont County, Wyoming, on which the Boysen Dam, hereinafter mentioned, is located. An affidavit was filed in said cause for the purpose of constructive service on said defendants. Service by publication was had, and none of the defendants appeared in the cause except the Chicago Title & Trust Company and Charles H. Jackson, Trustees. Those defendants answered, a trial was had, and a judgment rendered in the cause on September 11, 1915, in favor of the Shoshoni Lumber Company, giving it judgment for $ 7004.16 and ordering the foreclosure of a lien on a certain water power plant consisting of the Boysen Dam and appurtenances thereunto belonging. A motion for a new trial was filed in said cause on behalf of said trustees, which was overruled. Allen Boysen became the assignee of said judgment on December 8, 1915. On December 22, 1915, an execution and order of sale was issued on said judgment, and proceedings were had whereby and whereunder the property on which the lien had been declared in said judgment was sold to the said Allen Boysen.

Subsequently, on September 3, 1918, a motion was filed in said cause by Ella R. Clarke to open the default in said case and for leave to defend said action. The motion alleges generally that the applicant is the owner and holder of bonds of the Big Horn Power Company, that the affidavits filed in said cause upon which said publication was based were defective; that none of the unknown bond holders, defendants in said cause, were served with process or had actual notice of the pendency of said action in time to appear in said cause and defend therein, and had not authorized anyone to appear for them; that several of the bond holders, defendants in said cause, at the commencement of the action, died prior to the rendition of judgment herein. The motion was accompanied by affidavit as well as an answer, which denied, in substance, the allegations of the petition filed by the plaintiff in the original action. Other affidavits were thereafter filed in said cause, some supporting and others negativing the truth of the allegations contained in said motion of Ella R. Clarke. No summons was issued, or notice served, but Allen Boysen appeared on June 14, 1919, setting forth certain facts denying the right of Ella R. Clarke to appear in said action for the purpose of defense. The cause came on for final hearing on June 28, 1921, and the motion of said Ella R. Clarke to open the default in said action and for leave to defend the same was denied. A motion for new trial was filed and overruled and said applicant, Ella R. Clarke, brings proceedings in error.

1. The plaintiff in error claims to have the right to open said judgment under the provisions of section...