Greenawalt v. Natrona Improvement Company

• Decision Date: 28 December 1907
• Parties: GREENAWALT ET AL. v. NATRONA IMPROVEMENT COMPANY
• Court: Wyoming Supreme Court

92 P. 1008

16 Wyo. 226

GREENAWALT ET AL. v. NATRONA IMPROVEMENT COMPANY

Supreme Court of Wyoming

December 28, 1907

ERROR to the District Court, Natrona County, HON. CHARLES E CARPENTER, Judge.

The facts are stated in the opinion.

Affirmed.

Alex. T. Butler, for plaintiff in error.

The court erroneously quashed the summons upon Earnest, since it complied with the statute requirements, and his appearance was general. (Honeycutt v. Nyquist, 12 Wyo. 183.) Actions for money judgment and foreclosure of lien may be joined. (2 Yaple's Code Pl., 1102.) Without a showing, a default cannot be set aside. (Myer v. Kelly, 47 P 1063.) A joint judgment may be entered against defendants served and in default, though other defendants are not served. (9 P. 727; Lyon v. Page, 21 Mo. 104; Bank v. Field, 19 Wend., 643; Butler v Stump, 7 Ky. 387.) Money due on a stock subscription is due on a contract. (Norris v. Wrenschall, 34 Md. 492; 27 P. 1031.)

Any person may intervene, when his interest requires it, prior to final decree. (Snodgrass v. Holland, 6 Colo. 596.) In a suit by a contractor against the owner to enforce a mechanics' lien, a sub-contractor may intervene. (Pool v. Sanford, 52 Tex. 621.) All persons whose liens are filed as the statute provides, upon application to come in at any time before final judgment, and, by an answer in the nature of a cross petition, may set forth his claim and ask to have the same foreclosed. (Johnson v. Keeler, 46 Kan. 304.)

The court should have given a judgment following the prayer of the petition. The defendant by his default admits the justice of the claim, and thus consents that judgment be taken against him for what is prayed for in the petition. (Lowe v. Turner, 1 Ida., 107; Burlin v. Goodman, 1 Nev. 314; Lamping v. Hyatt, 27 Cal. 99.)

The judgment rendered for the defendant is contrary to law, in that plaintiff in error, Greenawalt, had a duly filed lien, a verified petition, and duly filed reply. There was not sufficient facts before the court to support a judgment for the defendant. Default may be entered for value of services rendered. (Whereatt v. Ellis (Wis.), 30 N.W. 520.)

E. D. Norton, for defendants in error.

The summons against Earnest was properly quashed, as he was not named as defendant in the petition. A stockholder is not liable for the debts of a corporation until the liability of the corporation has been established. Exhibits are not to be considered as a part of the pleading to which they are attached. A perusal of the petition of the intervenor conclusively shows that it does not state a cause of action against the defendants. The action of plaintiff is for the foreclosure of a mechanics' lien founded on a written contract, to which the intervenor is not a party, nor does the record disclose that he ever filed a lien as subcontractor. The said petition for intervention simply discloses the fact that the intervenor has a cause of action or grievance against the plaintiff solely, and not against the defendants.

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

OPINION

SCOTT, JUSTICE.

This action was commenced in the district court of Natrona County by Greenawalt, one of the plaintiffs in error, as plaintiff, against the Natrona Improvement Company et al., defendants in error, as defendants, to foreclose a mechanics' lien. After the amended petition, answer and reply had been filed, Hufman was permitted to file his petition of intervention. Thereafter a demurrer to Hufman's petition was filed, argued and submitted, and the court sustained the demurrer, to which ruling Hufman excepted; and no further or amended pleading was filed by him nor was the ruling upon the demurrer followed by any judgment against him. At the time set the case was regularly called for trial and upon motion the court gave judgment for the defendants and against Greenawalt upon the pleadings. Greenawalt and Hufman bring error.

1. The defendants in error have filed a motion to dismiss the proceedings in error on the grounds, first, that the pages of the record have not been numbered in accordance with the requirements of the rules of this court; and, second, that the statement of the points and authorities relied upon in plaintiffs in error's brief does not refer specifically to the page and portion of the record where the question under discussion arises.

This court has held that a failure to comply with these rules is not ground for dismissal in the first instance. (Harden v. Card, 14 Wyo. 479 (85 P. 246.) In that case it is said: "The rules provide that the court may, of its own motion, or upon motion of the defendant in error, enter an order requiring that the papers be properly arranged, or the pages numbered within a specified time, and that for a failure to comply with such order the cause may be dismissed in the discretion of the court." No such order has been made in this case, and it necessarily follows that the motion must be and is hereby denied.

2. Both Greenawalt and Hufman are designated in the title of the petition in error as plaintiffs in error. The petition was filed in this court on April 6, 1907. Its opening words are, "Plaintiffs in error say that at the January, 1907, term of the district court, Second judicial district, in and for Natrona County, the State of Wyoming, on the 26th day of February, A. D. 1907, being one of the regular days of said January, 1907, term of said district court, said defendants in error recovered a judgment by the consideration of said court, against said plaintiffs in error, in an action wherein J. L. P. Greenawalt and A. S. Hufman were plaintiffs and the Natrona Improvement Company and Boney Earnest et al. were defendants, a transcript of the docket, and journal entries whereof, is filed herewith, as made and provided by the statute in such case.

"The said plaintiffs in error claim that there is manifest error in the records and proceedings of said court filed herewith and made a part hereof, to-wit:" and then follows the various assignments of error. Neither in the title nor body of the judgment does Hufman's name appear. The judgment complained of is against Greenawalt alone and in favor of the defendants, and Hufman is not a party thereto. The petition in error and the assignments of error are joint, and prosecuted and made jointly by Greenawalt and Hufman, and the prayer is for joint relief.

Hufman's appearance in the case was as intervenor, and his right to be heard must on the record be based solely on the order of the court sustaining the demurrer to his petition. Such an order is neither a judgment nor a final order within the provisions of our statute from which an appeal will lie and it has been so held by this court in Menardi v. Omalley, 3 Wyo. 327, 23 P. 68, and Turner v. Hamilton, 10 Wyo. 177, 67 P. 1117. Had he filed a separate petition in error and served his assignments he would, under these decisions, have had no standing in this court and his petition would in such case have to be dismissed. Greenawalt having joined with Hufman in prosecuting joint assignments of error, the question is presented as to whether the assignments so made entitle him to have them reviewed in this court. With reference to a joint motion for a new trial this court announced the rule in North Platte Milling Co. v. Price, 4 Wyo. 293 at 293-306, 33 P. 664, as follows: "The motion for a new...