Gill v. Jones

• Decision Date: 05 February 1898
• Parties: GILL v. JONES.
• Court: Kansas Supreme Court

52 P. 98

59 Kan. 772

GILL v. JONES.

Supreme Court of Kansas

February 5, 1898

Error to district court, Harper county; G. W. McKay, Judge.

Action by the Badger Lumber Company against Giles M. Goss and Mary Goss and others to foreclose a mortgage in which defendants J. S. Gill, and H. Llewelyn Jones, as assignee of the Farmers’ Loan & Trust Company of Kansas, filed separate answers and cross petitions, asking the foreclosure of certain mortgages held by them, respectively. From the decree, J. S. Gill brings error, serving summons in error only on said assignee. Dismissed.

Huston & McColloch, for plaintiff in error.

Wall &amp Brooks, for defendant in error.

OPINION

PER CURIAM.

Stripping this case of all irrelevant matter and prolixity of detail, the ultimate and essential facts may be stated as follows: The Badger Lumber Company sued to foreclose a mortgage upon real estate which it admitted was only a third lien. The plaintiff in error, by answer and cross petition sued for the foreclose of a mortgage upon the same land claiming it to be a first lien. The defendant in error sued to foreclose two mortgage liens, also upon the same land, one of which it claimed to be a first lien, and the other of which it claimed to be a second lien. The mortgage debtors in all these cases were Giles M. and Mary Goss. A finding was made that the lien claimed by the plaintiff in error to be first, and the one claimed by the defendant in error to be first, were equal in matter of priority, and that the other lien of defendant in error was, as claimed, second in point of priority. No adjudication of the lien of the Badger Lumber Company, the plaintiff in the case, has been made, so far as the record shows. The error claimed by the plaintiff in error is the adjudication that the first lien of the defendant in error is equal in priority with his lien, and ordering a pro rata division of the proceeds of the sale of the land. The only one upon whom service of summons in error has been made is the defendant in error, H. Llewelyn Jones, as assignee. He moves to dismiss because of lack of necessary parties to the proceeding in error. The motion to dismiss must be sustained. A reversal of the case, and the consequent unsettling of priorities of lien, as adjudicated by the court below, might be seriously prejudicial to the judgment debtors Giles M. and Mary Goss. For aught we can tell, it might be prejudicial to the unlitigated...