Havemeyer v. Paul
| Decision Date | 18 June 1895 |
| Docket Number | 7400 |
| Citation | 63 N.W. 932,45 Neb. 373 |
| Parties | WILLIAM F. HAVEMEYER ET AL., APPELLEES, v. GEORGE J. PAUL, APPELLANT, ET AL |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before FERGUSON, J.
REVERSED AND REMANDED.
George W. Shields, for appellant, cited: Cockle Separator Mfg Co. v. Clark, 23 Neb. 702; Arnold v. Badger Lumber Co., 36 Neb. 841; Hapgood v. Ellis, 11 Neb 131; Burge v. Gandy, 41 Neb. 149.
Wharton & Baird, contra, cited: Johnson v. Missouri P. R Co., 18 Neb. 690; School District v. Caldwell, 16 Neb. 68; Van Sant v. Butler, 19 Neb. 351; Bell v. White Lake Lumber Co., 21 Neb. 525; Dillon v. Russell, 5 Neb. 484.
Mahoney, Minahan & Smyth, McClanahan & Halligan, John P. Breen, William A. Redick, and Howard B. Smith, also for appellees.
William F. Havemeyer and W. F. R. Mills (the latter as receiver of the Hamilton Loan & Trust Company) brought this suit in equity in the district court of Douglas county, making William J. Paul, the Phenix Loan Association, George J. Paul, Fred Reumping, the Midland State Bank, George B. Christie, George L. Green, William D. Mead, Jr., and a large number of other persons whose connection with this case is immaterial here, parties defendant. Said William J. Paul had executed two mortgages to the Hamilton Loan & Trust Company, and it had assigned one of said mortgages to Havemeyer. The suit was brought to foreclose these two mortgages. The record does not disclose, nor is the inquiry material here, why or upon what theory Havemeyer and the receiver of the loan and trust company brought this action jointly. The action was brought on the 8th day of January, 1894, and a summons was issued for all the parties made defendants. This summons was returned on the 13th of January duly served on George J. Paul, the Midland State Bank, and Fred Reumping only. None of the other above mentioned parties made defendants to the action, so far as the record shows, were ever served with process. The answer day fixed by the summons was February 12, 1894. On the 8th of February, 1894, George J. Paul filed his answer to the petition of Havemeyer and Mills, traversing its averments, and setting out that he was the owner of the mortgaged premises, having become such at a date subsequent to the date of the mortgages being foreclosed. On the 30th of January, 1894, the Midland State Bank filed its answer and cross-petition claiming a lien upon the mortgaged premises. On the 15th of March, 1894, by leave of the court, but without any notice thereof ever having been served upon or given to George J. Paul, Havemeyer filed a supplemental petition in the action, setting out that since the bringing of the suit, in order to protect his mortgage lien he had paid out $ 222.77 as insurance premiums on the mortgaged premises, and prayed that he might be given a lien for said sum and interest against the mortgaged property. On the 24th of April W. D. Mead, Jr., filed an answer and a cross-petition claiming a lien upon said mortgaged property. On the 25th of April George L. Green filed an answer and a cross-petition claiming a lien. On the 27th of April George B. Christie filed an answer and a cross-petition claiming a lien against said property. And on the 16th of June the Phenix Loan Association filed an answer and a cross-petition claiming a lien against said mortgaged property. It is to be observed that these last four answers and cross-petitions were filed after the answer day and without notice to George J. Paul or the other parties to the suit. The record does not disclose that George J. Paul ever appeared in the case, either personally or by counsel, after the filing of his answer on February 8 until after the decree. The answer of Fred Reumping, if indeed he ever filed one, does not appear in the record. On the 27th and 28th days of June, 1894, the court heard the evidence in the case, Havemeyer, Mills, the Midland State Bank, Mead, Jr., Green, Christie, and the Phenix Loan Association appearing. George J. Paul did not appear on the trial, either in person or by attorney. On the 30th day of June, 1894, the court made the following findings: (1) That there was due Havemeyer on his mortgage bond and coupons, and for insurance paid since the bringing of the suit, $ 37,415.92, and that he had a first lien upon the mortgaged property; (2) that there was due Mills, receiver, on his mortgage $ 1,104.24, which was a second lien upon the mortgaged property; (3) that there was due the Phenix Loan Association on the bonds and mortgages set out in its answer $ 12,420.30, which was a third lien upon the mortgaged property; (4) that there was due Fred Reumping on the judgment set out in his answer and cross-petition $ 496, which was a fourth lien; (5) that there was due William D. Mead, Jr., on the judgment set out in his answer and cross-petition $ 2,184.24, with seven per cent interest thereon from December 29, 1890, and costs, taxed at $ 333.16, which was a fifth lien on the premises; (6) that there was due the Midland State Bank on the judgment set out in its answer and cross-petition $ 419.80, with interest thereon at ten per cent per annum from January 6, 1891, which was a sixth lien on the premises; (7) that there was due G. L. Green on the judgment set out in his answer and cross-petition $ 65, with interest at seven per cent per annum from May 11, 1891, which was a seventh lien; (8) that there was due George B. Christie on the judgment set out in his answer and cross-petition $ 2,013.33, which was an eighth lien. The decree provided that unless the said sums found due should be paid within twenty days that the mortgaged premises should be sold and the amounts found due paid out of the proceeds of said sale. To reverse this decree George J. Paul has appealed.
1. The first complaint of the appellant relates to the action of the court in including in the amount found due Havemeyer the amount alleged by him to have been paid for insuring the mortgaged property after the bringing of the suit. Section 149 of the Code of Civil Procedure provides "Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case, occurring after the former petition, answer, or reply." The claim of Havemeyer for payments made for insurance on the mortgaged property after the bringing of this action was a separate and independent cause of action and one that arose subsequent to the bringing of this suit, and was properly presented to the court by a supplemental petition. But we are of the opinion that the learned judge erred in permitting Havemeyer to file this supplemental petition without notice thereof to George J. Paul and other parties to the action who would be affected thereby. Paul, having been duly served with summons, was bound to take notice of any reply to such answer which Havemeyer might make, but he was not compelled to take notice of the supplemental petition filed in the case by Havemeyer. If the record disclosed that Paul was present in court and consented to the filing of this supplemental petition, that would of course be a waiver of his right to insist upon a formal notice thereof, but the record contains no such disclosure. If it appeared from the record that Paul appeared either in person or by counsel and participated in the trial of the case, perhaps he could not now be heard to complain of his want of notice of the filing of such supplemental petition. But as already stated the record does not show that Paul, either in person or by attorney, was present or participated in the trial of the case. So far as the record shows, Paul had no knowledge whatever of the existence of the supplemental petition in question until after the rendition of the decree appealed from. By the summons served upon Paul he was notified that he had been sued by Havemeyer and that he was required to appear and answer his petition by the 12th of February. He appeared and he answered; and he had a right to presume that the court would render no other or different decree in favor of Havemeyer than that prayed for by him in his original petition. If a cause of action accrued to Havemeyer against the mortgaged property subsequent to the date of the filing of his petition, and if he desired a judgment or decree on such cause of action, he pursued the proper course in presenting the matter to the court by a supplemental petition. But Paul, without notice of the filing of such supplemental petition, or without some act of his by which he waived such notice, is no more concluded and bound by the judgment rendered thereon than he would have been by the decree rendered in favor of Havemeyer on his original petition, had such decree been rendered against the property without any summons having been served on him. Paul was not bound to take notice of the filing of the supplemental petition of Havemeyer because of the fact that he had been served with a summons in the original action and had appeared and answered. He was no more bound to take notice of the supplemental petition than if he had not answered; and it will scarcely be questioned that Paul, had he not appeared in the action, though duly served with summons, would not have been bound by the decree which the court rendered on the supplemental petition of Havemeyer, in the absence of all notice thereof. By the filing of the supplemental petition Havemeyer, in effect, brought another suit against the mortgaged property and all the parties to the original action; and it is only because the cause of action set out in the supplemental petition was connected with and grew out of the subject-matter on which the original...
To continue reading
Request your trial