Hackett v. Linch
| Decision Date | 11 June 1940 |
| Docket Number | 2154 |
| Parties | HACKETT ET AL. v. LINCH ET AL |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Crook County; JAMES H. BURGESS Judge.
Action for partition by Della Hackett and Myron W. Goodson, against David Linch and others, and Louis E. Schloredt and Louis E Schloredt, as administrator of the estate of Elizabeth Fowler, deceased, and Cecelia Schloredt, wherein a decree was made and entered directing that partition be had and determining the respective interests of the several parties in the property. From an order confirming the sale of the property, Louis E. Schloredt and Louis E. Schloredt, as administrator of the estate of Elizabeth Fowler, deceased and Cecelia Schloredt appeal, and Myron W. Goodson moves to dismiss the appeal.
Appeal dismissed.
For the appellants, the cause was submitted on the briefs of Earl Dunlap of Gillette and John T. Milek of Sturgis, S. D.
The alias writ of sale was made without due notice and was defective. Pacific Bank v. Hannah, 90 F. 72; Land Company v. All Persons, 156 P. 876; Fureness v. Severtson, 71 N.W. 196; Prince v Clark, 45 N.W. 663; Young v. Heffner, 36 Ohio St. 232; Parkhill v. Doggett, 112 N.W. 189. Cecelia Schloredt was interested in the land and should have been made a party. Field v. Leiter, 90 P. 378. Dismissal of a bill in partition is an adjudication as against all served with process. Custer v. Hall (W. Va.) 76 S.E 183. The writ of sale was issued without determining the rights and interest of parties interested in the land and was void. Phillips v. Dorris, 76 N.W. 554; Miller v. Peters, 25 Ohio St. 270; Longshore v. Longshore (Ill.) 65 N.E. 1081; 47 C. J. 432; Cotton v. Cash (Miss.) 37 So. 459; West v. Cedar Company, 101 F. 615. Defendants and objector were deprived of substantial rights. Lawrence v. Jacobs, 53 Cal. 24; Stevens v. McCormick, 90 Va. 735. The appeal should not be dismissed. The proper parties and only parties necessary to the appeal are before the court. Ranch v. Hammond Packing Company (Wyo.) 228 P. 1027. There was no issue for decision below, since the order of sale was fatally defective, and the order confirming the sale was excepted to as the record shows. Appellants should not be penalized for any omission of the clerk in failing to make proper journal entries.
For the respondent, the cause was submitted on the briefs and oral argument of E. E. Wakeman of Newcastle.
A new action for partition will not lie. The court was vested with jurisdiction to carry its former decrees into effect. Sec. 89-3815, R. S. The interests of the several claimants may be adjusted in distribution of the proceeds of sale under Section 89-3814, R. S. A decree of partition is conclusive and does not become dormant. Beaumont v. Herrick, 24 Ohio State 445; Moore v. Ogden, 35 Ohio State 430. The trial court had authority to direct the issuance of an alias writ of sale. 34 C. J. 737. Under proper conditions, a sale of lands in partition is a matter of right. 20 R. C. L. 774; Freeman on Partition, Sec. 539 and cases cited. A grantee from a tenant in common pending a suit for partition is bound by the decree. 47 C. J. 435; In re Miller, 77 A. 773; Huffman v. Darling, 53 N.E. 939; Comer v. Dodson, 22 Ohio State 617. Purchasers pendente lite need not be made parties to the partition suit. 20 Stan. Enc. Procedure 1021; Stein v. McGrath (Ala.) 30 So. 792; In re Miller's Estate, 77 A. 773; Connell v. Wilhelm, 16 S.E. 245. Notice of a motion is not required in pending cases. 42 C. J. 480; Manning v. Nelson (Ia.) 77 N.W. 503; Saudners v. Harris (N. D.) 139 N.W. 235. Notice to execution debtor is not necessary. Water Supply Co. v. Farnow (Calif.) 92 P. 667; Doland v. Philip (Cal.) 91 P. 330; Harrier v. Dasfford (Calif.) 78 P. 1038. Mr. Goodson purchased interests in the land subject to the execution of orders of court. All parties to the action in the court below, whose interests would be affected by a reversal of the judgment, are necessary parties to an appeal. Johnson v. Company, 4 Wyo. 164; Pioneer Canal Co. v. Akin, 27 Wyo. 198; Wyoming Hereford Ranch v. Hammond Packing Company, 31 Wyo. 31. The order of April 21, 1939, was not excepted to. The appellate court will not review an order, to which no exception has been taken. 47 C. J. 590; U. S. v. Trabing, 3 Wyo. 144; Atchison v. Arnold, 11 Wyo. 351; Francis v. Brown, 22 Wyo. 528; Schmidt v. Bank of Newcastle, 29 Wyo. 260. The order of April 21, 1939, was not entered upon the journal of the court and there is no appellate jurisdiction. Hahn v. Citizens State Bank, 25 Wyo. 467; Lawer v. Kline, 41 Wyo. 101. The appeal should be dismissed because of a defect of parties in interest, who would be affected by a reversal of the judgment. Johnson v. Company, 4 Wyo. 164; Canal Company v. Aiken, 27 Wyo. 198; Wyoming Hereford Ranch v. Packing Company, 31 Wyo. 31. Appellants did not take exception to the order appealed from, and there is no question to be decided by this court. 3 C. J. 895; 47 C. J. 590; United States v. Trabing, 3 Wyo. 144; Improvement Company v. Bradley, 6 Wyo. 171; Atchison v. Arnold, 11 Wyo. 351; Schmidt v. Bank, 29 Wyo. 260. Moreover, the order appealed from was not entered and there is no question for review on appeal. Hahn v. Citizens State Bank, 25 Wyo. 467.
This cause is before the court upon a motion to dismiss the appeal which was taken by some of the defendants in an action wherein partition was sought of certain lands located in Crook County, Wyoming. Briefs have been submitted here upon the merits of the litigation by both the appellants and respondent, as well as upon the motion aforesaid. The respondent Goodson additionally submitted oral argument through his counsel. The instant proceeding undertakes to bring before us questions touching the validity of an alias order of sale made in the case of the district court of Crook County, Wyoming, though, as a matter of fact, the appeal is actually undertaken from an order confirming the sale of the property involved.
The motion to dismiss will be disposed of first.
Briefly the following facts concerning this litigation may be noted in connection with which the motion aforesaid should be examined and ruling made concerning it: The partition suit above mentioned was begun by one Della Hackett in the ordinary way, making a number of the parties interested in the property affected parties defendant. Our examination of the record discloses that these defendants seem to have all appeared and filed an answer in the cause. Thereafter a decree was made and entered by the court above named, directing that partition of the property be had and determining the respective interests of the several parties in said property. We understand that since the inception of the litigation some of the parties affected thereby have transferred their interests, or a portion of them at least, to other persons. Such transferees would under well known principles of law, of course, be bound by what had already been done in the action and were as well obligated to take notice of further steps taken in the cause under the same rules as would govern the original litigants.
The commissioners appointed to make partition appraised the property sought to be divided and reported that the land involved could not "be partitioned among the many parties without a manifest injury to the value thereof and it would be more profitable to all the parties concerned that the same be sold." This report was duly confirmed by the court. The sale of the land was ordered. Several efforts were apparently made to dispose of the property, with no result. Finally, an order of court was made on April 21, 1939, directing the issuance of an alias order of sale of this property, the disposal thereof to be at public auction. No one appears to have objected or excepted to this order. Under it a sale of the property was had for a cash sum, which was paid over to the sheriff of Crook County, and that sum now remains in his hands subject to disposition through court order. Thereafter, objections were filed by one of the defendants and by Cecelia Schloredt, who is alleged to be "a tenant in common and joint owner with the other parties to the action," opposing the confirmation of said sale. These objections were heard by the court and an order was entered by it on August 3, 1939, confirming said sale, the order so directing providing among other things "that the Court shall, and does hereby, reserve jurisdiction herein for the purpose of distributing the proceeds of said sale to the parties entitled thereto, and to tax costs and expenses accrued and to accrue herein in accordance with equity." To this order the part is filing objections to the confirmation of said sale, as aforesaid, reserved their due exception. It is this order also from which the parties last mentioned have prosecuted the direct appeal proceeding which has brought the cause here.
Respondent Goodson presents several grounds for his motion to dismiss and urges them as meritorious, and requiring that said motion should be sustained. Of these grounds but one need be considered, viz., that which states that "a number of the defendants, who were parties in this proceeding in the District Court of Crook County, Wyoming, and particularly the following defendants, to-wit: Charlie Linch, Margaret Mearns (or Mary Mearns), Ruth Detwiler and Elizabeth Schulte, who were parties defendant in the District Court, and who are interested in the subject matter of this action, and who are necessary parties to this appeal, have not been made parties hereto and have not been served with notice of appeal herein."
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Lyman v. Fisher (In re Fisher)
...with interests in co-owned real property, "some of the parties affected thereby . . . transferred their interests . . . to other persons." Id. at 164. Hackett decision gave no indication it was improper for the parties to have transferred their interests while the partition action was pendi......