Grand Island & W.C.R. Co. v. Sweeney

• Decision Date: 25 June 1900
• Docket Number: 1,214,1,213,1,212,1,215.
• Citation: 103 F. 342
• Parties: GRAND ISLAND & W.C.R. CO. et al. v. SWEENEY (four cases).
• Court: U.S. Court of Appeals — Eighth Circuit

103 F. 342

GRAND ISLAND & W.C.R. CO. et al. v. SWEENEY (four cases).

Nos. 1,212, 1,213, 1,214, 1,215.

United States Court of Appeals, Eighth Circuit.

June 25, 1900

These four suits were instituted by the appellee, Sweeney, to foreclose four certain and different mechanics' liens for powder and explosives furnished by him to subcontractors for the construction of certain sections of the railroad of the appellant the Grand Island & Wyoming Central Railroad Company. The defendants in the first two cases, Nos. 1,212 and 1,213, are the railroad company whose property was alleged to be subject to the lien; John Fitzgerald and David Fitzgerald, co-partners under the firm name of John Fitzgerald & Bro., who were the original contractors for the construction of the road; John Chamberlain and Joseph W Skinner, co-partners under the firm name of Chamberlain &amp Skinner, who were the subcontractors for the construction of the particular part of the road for which appellee furnished supplies; and the Congdon & Henry Hardware Company alleged in the bill of complaint to have, or to claim to have, an interest in or lien upon the property of the railroad company which complainant averred to be junior and inferior to his lien. The defendants in the next case, No. 1,214, and their relations to each other and to the complainant, are the same as those in the cases just mentioned, except that Nathan Wescott is the subcontractor, in lieu of Chamberlain & Skinner. The defendants in the last case, No. 1,215, and their relations to each other and to the complainant, are the same as those first mentioned, except that John Carroll and Samuel E. Donoghue, co-partners under the firm name of Carroll & Donoghue, are the subcontractors, instead of Chamberlain & Skinner. The railroad company and David and John Fitzgerald appeared and filed their joint answer to the bill of complaint in each case. The defendants Chamberlain & Skinner, being nonresidents, were duly served by publication in cases 1,212 and 1,213, entered no personal appearance to the suits, and suffered judgment by default. The defendant Wescott, being a nonresident, was duly served by publication in case No. 1,214, entered no personal appearance to that suit, and suffered judgment by default. The defendants Carroll & Donoghue were personally served with process in case No. 1,215, but suffered judgment by default. The defendant the Congdon & Henry Hardware Company was also personally served with process in each and all of the cases, but made no appearance to the suits, and suffered judgment by default. The final decrees in all the cases are similar. They first find the amount due from the subcontractors to the complainant in each case; then adjudge complainant's right to a lien upon the property of the railroad company; next order the subcontractors and the railroad company to pay the amount so found, together with all costs, to complainant, within 30 days, and, in case of default in making such payment, that the property of the railroad company should be sold in the usual manner, for the purpose of satisfying complainant's demand, and finally specifically order, adjudge, and decree that the defendants, including the subcontractors and the hardware company, 'be forever barred and foreclosed of all right, title, lien, and equity of redemption in and to said premises and real property so sold, or any part thereof. ' The record shows that the subcontractors Chamberlain & Skinner had filed a lien upon the property involved in the cases in which they were defendants, namely, Nos. 1,212 and 1,213, amounting to $58,557.53; that the subcontractors Carroll & Donoghue had filed a lien upon the property involved in the case in which they were made defendants, amounting to $57,952.54; and that the defendant hardware company had filed a lien against the property involved in each and all of the cases. The appeals in these cases on the first hearing were dismissed by the court of its own motion, because it appeared that the subcontractors who were parties defendant had an interest in the decrees rendered by the trial court which might be affected by the action of this court on appeal, and because such subcontractors had neither joined, nor been given an opportunity to join, in the appeal. Railroad Co. v. Sweeney, 95 F. 396, 37 C.C.A. 127. Subsequently the court, in order to give counsel an opportunity to be fully heard, granted a rehearing, and afterwards motions were duly filed by the appellee to dismiss the appeals on two grounds: First, because the subcontractors were neither made parties to the appeal nor given notice to appear and join in the appeal; second, because the defendant hardware company was neither made a party to the appeal nor notified to appear and join in the same. These motions were argued by counsel in connection with their presentation of the case on the merits. If they are well taken, a consideration of the merits of the case is unnecessary.

N. K. Grigge (Frawley & Laffey and Charles F. Manderson, on the brief), for appellants.

Charles W. Brown (Eben w. Martin and Norman T. Mason, on the brief), for appellee.

Before CALDWELL and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS District Judge, after stating the case as above, .

It was held in the former opinion that upon the face of the record the several subcontractors had such an interest in the decrees as required their joinder in the appeals, or a showing of opportunity given them to so join. The correctness of this holding is challenged by learned counsel for the appellants, and attention is called, among other things, to the fact that service was made on the subcontractors by publication only, and that, as a consequence, no personal liability was or could have been decreed against them. This fact was not disclosed by the transcript of the record as originally printed, and was, therefore, overlooked. Be this, however, as it may, the obligations of the subcontractors to the complainant were necessarily involved in fixing the liens upon the railroad. No lien could have been established or decreed against the railroad without having first litigated the question as to the indebtedness of the subcontractors to the complainant, and it may be that the adjudication as to the amount due was conclusive, though the service was by publication. For the purpose of fixing the liens, at least, the subcontractors were necessarily made parties defendant in each case, and service by publication against them was sufficient for that purpose. But, irrespective of any consideration of the subcontractors' relation to the cases, the present motions to dismiss can be disposed of on another ground. The hardware company was made a defendant in each case, and is charged in the bill of complaint to have a lien which was junior and inferior to that of the complainants. The hardware company was a necessary party to the suits. The statutes of South Dakota in force at the time the suits were originally instituted in the state court required the complainant to make all persons claiming liens against the same property parties. Sess. Laws S.D. 1893, C. 116, Sec. 4. This last-named company was personally served with the process in each case. It had, like the subcontractors, filed mechanics' liens against the sections of the railroad involved in each case. By the final decree in each case it was forever barred and foreclosed of all right under its lien as against the complainant. This company did not join in the appeal in either of the cases, and no severance or equivalent in the form of notice to appear and join was resorted to by the appellants. The question, therefore, whether the court has jurisdiction to hear these appeals taken by the railroad company and Fitzgeralds without joining the hardware company, or showing reason for not doing so, is now clearly raised upon its merits.

It is first contended by counsel for appellants that, because judgment went by default against the hardware company, and because it thereby admitted that complainant was entitled to the remedy prayed for, it had nothing to complain of, and was not a necessary party to the appeals taken by the other defendants. This is not the law. The hardware company, whether it suffered default or not, was interested in the decrees as rendered, and had a right to prosecute appeals from such decrees, and, notwithstanding such default, it should have been made a party appellant, or should have been given an opportunity to become such. Mason v. U.S., 136 U.S. 581, 10 Sup.Ct. 1062, 34 L.Ed.

545; Davis v. Trust Co., 152 U.S. 590, 14 Sup.Ct. 693, 38 L.Ed. 563; Trust Co. v. Clark, 83 F. 230, 27 C.C.A 522. It is clear, we think, by the settled doctrine of this court, that these appeals should be dismissed because of the nonjoinder of the hardware company. The earliest case on the subject is that of Gray v. Havemeyer, 53 F. 174, 3 C.C.A. 497. That case involved a similar question to the one now under consideration, namely, the relative priorities of the claims of mechanics' lien holders against a common fund or property. This court there aptly puts the question: 'Upon what theory can it be held that this court ought to proceed to consider the correctness of the decree in the circuit court on the question of the relative priorities of the several lienholders when none of them save the appellant would be bound by any decree we might enter? ' The general rule is there laid down that this court...