Fales v. Weeter Lumber Co., Ltd.

• Decision Date: 30 September 1914
• Citation: 143 P. 526,26 Idaho 367
• Parties: W. D. FALES and ELIZABETH B. FALES, Respondents, v. WEETER LUMBER COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

143 P. 526

26 Idaho 367

W. D. FALES and ELIZABETH B. FALES, Respondents, v. WEETER LUMBER COMPANY, LTD., a Corporation, Appellant

Supreme Court of Idaho

September 30, 1914

EQUITABLE ACTION-JUDGMENT-SETTING ASIDE.

1. Held, under the law and evidence, that the court erred in setting aside the judgment sought to be set aside by this action.

2. One who seeks equity in a court of conscience must do equity before any relief will be granted.

3. Where an equitable action is brought to vacate a judgment upon the ground that it was obtained without jurisdiction, it must appear that the judgment sought to be set aside is inequitable and unjust, and that plaintiff has a good defense thereto.

4. If a judgment is regular on its face, it will never be opened up merely for the purpose of letting in the defense of the statute of limitations.

APPEAL from the District Court of the Fourth Judicial District for Gooding County. Hon. Edward A. Walters, Judge.

Equitable action to set aside a judgment. Judgment for plaintiffs. Reversed.

Judgment set aside. Costs awarded to appellant.

James R. Bothwell and Thos. F. Terrell, for Appellant.

As a matter of equity and good conscience, neither of the plaintiffs would be permitted to maintain this action seeking the equitable relief which they do, without first paying to the defendant the balance due to it for lumber and building materials, which it is conceded has not been paid. (Tracy v. Wheeler, 15 N.D. 248, 107 N.W. 68, 6 L. R. A., N. S 16; Willits v. Willits, 76 Neb. 228, 14 Ann. Cas 883, 107 N.W. 379, 5 L. R. A., N. S., 767; International Land Co. v. Marshall, 22 Okla. 693, 98 P. 951, 19 L. R A., N. S., 1056; Booth v. Hoskins, 75 Cal. 271, 17 P. 227, and cases cited; Bernhard v. Idaho Bank & Trust Co., 21 Idaho 598, Ann. Cas. 1913E, 120, 123 P. 481; Brandt v. Little, 47 Wash. 194, 91 P. 765, 14 L. R. A., N. S., 213; 1 Black on Judgments, sec. 394.)

"A court of equity will not interfere with the enforcement of a judgment recovered at law, unless it is unjust and unconscionable; and therefore such relief will not be granted, unless the complainant shows that he has good and meritorious defense to the original action." (23 Cyc. 1031.)

"Acquiescence consisting of mere silence may operate as an estoppel to preclude assertion of legal title and rights of property." (Loughran v. Gorman, 256 Ill. 46, 99 N.E. 886; 2 Pomeroy, Eq. Jur., 3d ed., 818; Niven v. Belknap, 2 Johns. (N. Y.) 573.)

In order for the plaintiff to state a cause of action or to recover in this cause, she must allege in her complaint and prove as a fact that the defendant Weeter Lumber Co., at the time when said lien was filed and at the time when said action to foreclose the same was commenced, knew that the said property was community property, and also knew that it was occupied and used as a place of residence. (Washington Rock-Plaster Co. v. Johnson, 10 Wash. 445, 39 P. 115.)

There is nothing in the statutes or the laws of Idaho requiring the wife to be made a party defendant in actions to foreclose a lien either upon the homestead or upon other community property occupied as a residence.

"Where a lien attached to real estate before becoming a homestead, the wife is not a necessary party to an action foreclosing the same." (Watkins v. Sproull, 8 Tex. Civ. App. 427, 28 S.W. 356; Boisot on Mechanics' Liens, sec. 529.)

W. G. Bissell, for Respondents.

The judgment against which we sought to quiet title was a nullity and void, and thus, as a general proposition of law, is open to attacks, either direct or collateral, at any time. (Gapen v. Bretternitz, 31 Neb. 302, 47 N.W. 918; Kansas City etc. R. R. Co. v. Moon, 66 Ark. 409, 50 S.W. 996; Miles v. Strong, 68 Conn. 273, 36 A. 55; Yon v. Baldwin, 76 Ga. 769; Johnson v. Logan, 68 Ill. 313; Powell v. Gisendorff, 23 Kan. 538; Mayo v. Ah Loy, 32 Cal. 477, 91 Am. Dec. 595.)

"In all suits to foreclose mechanics' liens and mortgages, the wife is a necessary party defendant." (McKay on Community Property, 385.) And notwithstanding the husband individually incurred the debt which the lien secures." (27 Cyc. 349; Sagmeister v. Foss, 4 Wash. 320, 30 P. 80, 744; Turner v. Bellingham Bay Lumber Co., 9 Wash. 484, 37 P. 674; Seattle v. Bacter, 20 Wash. 715, 55 P. 320; Powell v. Nolan, 27 Wash. 318, 67 P. 712, 68 P. 389; Weston v. Weston, 46 Wis. 130, 49 N.W. 834; Gray v. Gates, 37 Wis. 614; Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N.W. 1136; Northwestern Bridge Co. v. Tacoma Ship-building Co., 36 Wash. 333, 78 P. 996.)

"Legal proceedings to be conclusive against either must embrace both, and the judgment was therefore void." (Revalk v. Kraemer, 8 Cal. 66, 68 Am. Dec. 304; Hefner v. Urton, 71 Cal. 479, 12 P. 486; Watts v. Gallagher, 97 Cal. 47, 31 P. 626; Brackett v. Banegas, 116 Cal. 278, 58 Am. St. 164, 48 P. 90; Ludwig v. Murphy, 143 Cal. 473, 77 P. 150.)

SULLIVAN, C. J. Truitt, J., concurs.

OPINION

SULLIVAN, C. J.

This is an equitable action brought for the purpose of setting aside a judgment entered in the case of the Weeter Lumber Co. v. Fales, which case was appealed to this court, and the decision on appeal will be found in 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289. The trial court entered a judgment in favor of the plaintiff setting aside said former judgment and this appeal is from that judgment.

The following facts appear from the record:

William D. Fales entered into a contract with the Gooding Townsite Company on or about April 5, 1909, to purchase lots 19 and 20 in block 38 in the town of Gooding, by the terms of which contract the townsite company reserved title to said lots and agreed to convey said title to said Fales upon the payment of certain sums of money. At the time of the sale the lots were vacant and unimproved. After entering into said contract, Fales entered into a contract with one Mead to construct a building upon said lots and contracted with the appellant, the Weeter Lumber Company, to furnish the building material for the construction of such building. The lumber company furnished material to the amount of $ 1,927.34, which was actually used in the construction of the building. On August 6, 1909, the purchase price of said lumber being due and unpaid, the lumber company filed its claim of lien upon said premises. Thereafter certain payments were made to the lumber company by Fales upon the amount due for said material, and on February 2, 1910, there remained a balance of $ 719.82 due the lumber company for said material, and on that date the lumber company brought an action to foreclose the materialman's lien for said amount. On May 17th, William D. Fales filed a separate answer, wherein he admitted that he was the owner and reputed owner of said lots, but thereafter, on September 19, 1910, he filed an amended answer denying that he was the owner or reputed owner of said premises, and alleged that he held said property under said contract with the Gooding Townsite Company. Said foreclosure action was then tried and findings of fact and decree entered in favor of the lumber company, foreclosing said lien and directing the sale of the premises. From that judgment Fales took an appeal to the supreme court, and the opinion of this court therein is found in 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289.

It also appears that during the trial of said case Elizabeth B Fales, the wife of said Fales, was present as a witness, and testified in said case on behalf of her husband, that she knew of the filing of the lien upon said premises and the foreclosure of said lien and claimed no interest whatever in said premises, and suffered and permitted judgment to be entered in said suit without in any manner raising the question as to said property being community property. More than a year after said trial and the entry of said judgment, she filed her motion in said foreclosure suit to set aside and vacate the judgment of foreclosure, on the ground that it was community property and occupied as a residence. That motion was argued and submitted to the court and denied, and sh...