Greenough v. Prairie Dog Ranch, Inc.

• Citation: 531 P.2d 499
• Decision Date: 10 February 1975
• Docket Number: No. 4359,4359
• Parties: Frank GREENOUGH and Doris K. Greenough, Appellants (Defendants and Cross-Defendants below), v. PRAIRIE DOG RANCH, INC., Appellee (Cross-Claimant below), and Wyoming Production Credit Association, (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 499

531 P.2d 499

Frank GREENOUGH and Doris K. Greenough, Appellants (Defendants and Cross-Defendants below), v. PRAIRIE DOG RANCH, INC., Appellee (Cross-Claimant below), and Wyoming Production Credit Association, (Plaintiff below).

No. 4359.

Supreme Court of Wyoming.

Feb. 10, 1975.

Lawrence A. Yonkee and Tom C. Toner, Redle, Yonkee & Arney, Sheridan, for appellants.

Henry A. Burgess, Burgess & Davis, Sheridan, for appellee.

GUTHRIE, Justice.

Appellants herein, cross-defendants below, prosecute this appeal from a summary judgment decreeing the foreclosure of certain security agreements and a mortgage executed by the appellants solely upon that part of the judgment which awarded an attorney's fee in the sum of $19,163, being ten percent of the principal and interest found due. ¹ This judgment was awarded appellee upon a cross-claim against appellants, who were defendants in the suit to foreclose senior mortgages held by the Wyoming Production Credit Association and who joined appellee as holder of such junior encumbrances.

After entry of this judgment and during the pendency of this appeal this entire judgment, including the allowance for the attorney's fee herein disputed, was paid by T. R. Ranch, Inc., which had become the purchaser of the premises covered by the foreclosure decree. Appellee herein ² moved this appeal be dismissed, asserting that appellants were not real parties in interest and that the action was moot because the judgment had been paid in full and a release thereof demanded. Because the factual situation did not clearly develop whether the appellants herein had any right or claim to the proceeds or fruits of this appeal if successful, the motion to dismiss and the appeal were joined for hearing and argument.

THE MOTION TO DISMISS

This court has heretofore considered the question of a 'real party in interest' and has defined such party as one with actual and substantial interest in the subject matter' and noted that this interest may be a special or equitable one, Weber v. City of Cheyenne, 55 Wyo. 202, 97 P.2d 667, 669. That case further notes it to be such interest as may be affected by the decree or an entitlement to 'the avails of the suit.' Because a question of jurisdiction is involved, Wyoming Wool Marketing Association v. Urruty, Who., 394 P.2d 905, 908, it is necessary to examine this because when confronted with a question of jurisdiction the court must determine it, it being a fundamental question, Gardner v. Walker, Who., 373 P.2d 598, 599. Because of this the court required supplemental One of the contemtions of appellee herein in support of its motion it that, because the proceeds of the sale of this ranch are being held by an escrow agent for the benefit of certain creditors whose claims exceed the amounts due and payable, appellants have no right or interest in or to said proceeds and will receive no funds therefrom. There is a rather broad general rule that an action need not necessarily be brought in the name of the person who ultimately will benefit from the recovery, Allen v. Baker, D.C.Miss., 327 F.Supp. 706, 710; Race v. Hay, D.C.Ind., 28 F.R.D. 354, 355; 6 Wright & Miller, Federal Practice and Procedure: Civil § 1543, p. 645 (1971). The fact that creditors of appellants may receive these proceeds does not deprive these appellants of their status as real parties in interest. In the case of Lee v. Mack, 15 Misc.2d 657, 182 N.Y.S.2d 391, when such question was raised because the United States had asserted a lien on the proceeds for a sum in excess of the plaintiff's claim and had served upon defendants a direction requiring them to pay any sums due directly to the Federal government, the court held that plaintiff remained the real party in interest. Nor can we say, even absent citation of authority, that the application of these funds to the payment of the debts of these appellants resulting in a discharge of the liability up to the amount of this payment does not give them a real and substantial interest in the fund.

showing by the parties hereto of the nature and details of the transaction from which the payment of this judgment arose. We now have before the court a copy of the 'Purchase Offer' of T. R. Anderson, containing his offer to purchase these premises, and the terms thereof, from Frank Greenough and Doris K. Greenough dated November 1, 1973, and an escrow agreement between St. Paul Title and Insurance Company and T. R. Ranch, Inc., and Frank Greenough and his wife pertaining to the payment of the judgment herein, and the terms under which it was paid, dated March 6, 1974. In addition, there are several affidavits of counsel and copies of letters from the firm of attorneys representing T. R. Ranch, Inc., to the title company and appellants' attorney.

In urging its contentions as to the 'real party in interest,' appellee relies upon Wyoming Wool Marketing Association v. Urruty, supra, which did not in any manner modify the definition of 'real party in interest' set out in Weber v. City ofg Cheyenne, supra. Further reliance is made upon the case of Gardner v. Walker, supra, which is not applicableon its facts and merely holds that the insurance company which had paid all the damages is subrogated to the rights of the insured, and Gardner's total loss having been covered and paid by the insurance company he could not maintain the suit. It is suggested that this illustrates one of the clear reasons for the 'real party in interest' rule because a recovery for the insured in that case would not have relieved defendant from a suit by the insurance company against him for having occasioned its loss. Reliance is also made upon the case of Royster v. English, 138 Colo. 428, 334 P.2d 733, which we find totally inapplicable herein because there is undisputed evidence in that case that this claim had been voluntarily compromised and settled between the parties thereto, and the court treats this as a matter of mootness rather than as a matter of 'real party in interest.'

Without discussion at length the rather involved instruments covering this transaction, it would appear that this judgment was paid in full, including the attorney's fee, in order that Greenoughs might deliver merchantable title to the premises herein and that there was clear agreement that that any surplusage or residue from the funds deposited with the title company to pay this judgment which might result from the reduction of the attorney's fee would be redeposited in a designated bank, that the first $10,000 thereof would be credited directly to the appellants, and that any balance thereafter should be paid to a so-called 'security fund' which, although it was to be administered for payment of debts, was to be deposited in the name of The second facet of appellants' contention rests in the general rule that payment of the money judgment destroys the right of appeal. This is true if the payment is voluntary but an involuntary payment does not deny the right of appeal. Although neither party makes reliance thereon, the rationale of Yellowstone Sheep Co. v. Ellis, 55 Wyo. 63, 96 P.2d 895, is applicable to our disposal hereof. In that case the trial court entered a money judgment for the appellant, providing however that this money judgment could be satisfied if certain valid State leases were deposited with the clerk of court with an assignment to the appellee. We find the following statement by the court in commenting thereon, 96 P.2d 900:

Frank and Doris K. Greenough as tenants by the entireties, thus giving them the legal title to such account.

'* * * We are inclined to believe that any reasonable man would have acted likewise. Plaintiff did not so much accept a benefit, as it attempted to avoid an evil. Forfeiture of the right of appeal under the circumstances would be altogether too harsh to be consistent with justice. The motion to dismiss must be overruled.'

In this case appellant herein only sought to avoid the evil of unmerchantable title and to be able to convey the same, and his inability to so convey merchantable title might well have defeated his sale. We find a clear statement of the applicable rule in 2 Freeman on Judgments, § 1165, p. 2410 (5th Ed.):

'One against whom a judgment is entered, if he fails to satisfy it, must expect to see his property seized and sold at a sacrifice, and it is difficult to conceive how his payment of the judgment can give rise to any estoppel against his seeking to avoid it for error. Nevertheless there are cases deciding that one paying a judgment against him precludes all appeal therefrom. The better view, we think, is, that though execution as not issued, the payment of a judgment must be regarded as compulsory, and therefore as not releasing errors, nor depriving the payor of his right to appeal, unless payment by by way of compromise and settlement or under an agreement not to appeal or under circumstances leaving ony a moot question for determination. * * *' ³

The case of Joannin v. Ogilvie, 40 Minn. 564, 52 N.W. 217, involved the recovery of money to be able to discharge a lien based upon an unfounded claim. The landowner there paid the lien so he might clear his title to the premises and obtain a loan. The court held this was an involuntary payment and observed:

'* * * 'There is a class of cases where, although there be a legal remedy, a person's situation, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable prejudice; where the circumstances and the necessity to protect himself or his property otherwise than by resort to the legal remedy may operate as a stress or coercion upon him to comply with the illegal demand. In such cases, his act will be deemed to have been done under duress, and not of his free will.' (DeGraff v. Board of County Com'rs Ramsey County, 46 Minn. 319, 48 N.W. 1135) * * *' ⁴

The applicability of this case is emphasized because this payment...