Idaho Irr. Co., Ltd. v. Dill

• Decision Date: 07 March 1914
• Citation: 139 P. 714,25 Idaho 711
• Parties: IDAHO IRRIGATION CO., LTD., Appellant, v. CHARLES WILLIAM DILL, Respondent
• Court: Idaho Supreme Court

139 P. 714

25 Idaho 711

IDAHO IRRIGATION CO., LTD., Appellant, v. CHARLES WILLIAM DILL, Respondent

Supreme Court of Idaho

March 7, 1914

CAREY ACT SETTLER-LIEN-FORECLOSURE OF-CAREY ACT COMPANY-COMPLAINT-CAUSE OF ACTION-DEMURRER-NONJOINDER OF UNITED STATES-NECESSARY PARTY-REAL ESTATE-TITLE TO.

1. Where an action is brought by a Carey act construction company to foreclose a lien upon all of the right, title and interest of a Carey act settler in and to a water right and real estate, and the title of the land is in the United States, the United States is not a necessary party.

2. Under the provisions of sec. 4101, Rev. Codes, all persons having an interest in the subject of an action and in obtaining the relief demanded may be joined as plaintiffs except when otherwise provided by statute.

3. Sec 4102, Rev. Codes, as amended by Laws of 1909, p. 20, provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved.

4. Sec 4105, Rev. Codes, provides that of the parties to an action those who are united in interest must be joined as plaintiffs or defendants, and if the consent of anyone who should have been joined as plaintiff cannot be obtained, he may be made a defendant.

5. The term "parties to an action" is used to designate the person or persons seeking to establish a right, and the person or persons upon whom it is sought to impose a corresponding duty or liability.

6. It is not all persons who have an interest in the subject matter of the suit but in general those only who have an interest in the object of the suit who are ordinarily required to be made parties.

7. Held, that the title of the United States to the lands described in the complaint cannot in any manner be affected by the foreclosure of the liens involved in this action.

8. Under the provisions of sec. 1629, Rev. Codes, any company or association furnishing water for any tract of land is given a first and prior lien on the water right and the land upon which said water is used for all deferred payments for the water right, and upon default of any deferred payments the lienholder may foreclose the same in accordance with the terms and conditions of the contract for the purchase of the water right, and the period of nine months redemption is allowed after the foreclosure sale.

9. The United States is not a party to the contracts involved in this case, and has no interest whatever in the performance of the conditions therein contained.

10. If the prayer of the complaint demands more than the plaintiff is entitled to under the allegations of the complaint, that will not render the complaint demurrable.

11. On a demurrer to the complaint, the facts alleged in the charging part of the complaint are the only facts placed before the court for consideration.

12. The prayer is nothing more than a statement of the pleader's opinion of what the facts stated in the complaint entitle him to receive.

13. Held, that the United States is not a proper or necessary party to this action, since the title in the United States can in no wise be affected by a judgment and decree of foreclosure against the defendant Dill.

APPEAL from the District Court of the Fourth Judicial District in and for Lincoln County. Hon. Carl A. Davis, Judge.

Action to foreclose a Carey act lien. Demurrer to complaint sustained on the ground that the United States was a necessary party to said action. Judgment of dismissal entered. Reversed.

Reversed and remanded with directions. Costs of this appeal awarded to the appellant.

N. M. Ruick, A. L. Fletcher and V. P. Coffin, for Appellant.

The United States is not a necessary party defendant to this action. "The term 'parties to an action' is used to designate the person or persons seeking to establish a right and the person or persons upon whom it is sought to impose a corresponding duty or liability." (15 Ency. Pl. & Pr. 463, 584, 606; Story's Equity Pleading, sec. 72; Calvert on Parties to Suits in Equity, 10.)

"The propriety of a person being made a party depends upon his interest, not in the subject matter, but in the object of the suit." (Van Keuren v. McLaughlin, 21 N.J. Eq. 163; Wilson v. Castro, 31 Cal. 420, 427.)

"The prayer for improper relief will not vitiate a pleading otherwise sufficient." (Mark v. Murphy, 76 Ind. 534.)

"Prayer for relief does not constitute any part of the statement of the cause of action." (Bancroft v. Atyeo, 22 Kan. 32.)

"Prayer of a complaint cannot enlarge its allegations." (Board of Commrs. v. Cutler, 7 Ind. 6; Smith v. Smith, 67 Kan. 841, 73 P. 56; Harvey v. Hand, 48 Ind.App. 392, 95 N.E. 1020; Wilks v. Kreis (Tex. Civ. App.), 134 S.W. 838; Erie City Iron Works v. Thomas, 139 F. 995; Rollins v. Forbes, 10 Cal. 299; Mora v. Le Roy, 58 Cal. 8.)

"Where the complaint shows the plaintiff to be entitled to some relief, the fact that he claims more relief than he shows himself entitled to will not render the complaint demurrable." (Sunnyside Land & Improvement Co. v. Willamette Bridge Ry. Co., 20 Ore. 544, 26 P. 835; 6 Ency. Pl. & Pr. 350; Acker v. McCullough, 50 Ind. 447; Colson v. Smith, 9 Ind. 8; Newcomb v. Imperial Life Ins. Co., 51 F. 725.)

Harlan D. Heist, for Respondent.

The complaint shows upon its face that the United States owns and maintains the legal title to this land. The statutes of Idaho relative to the joinder of parties defendant are identical with those of California. "'May join' as plaintiff will be construed 'must join.'" (Whitney v. Stark, 8 Cal. 514, 515, 68 Am. Dec. 360, and cases cited.)

"All parties in interest to real estate are proper parties defendant in foreclosure proceedings." (Trimble v. Boothby, 14 Ohio 109, 45 Am. Dec. 526; People's Ditch Co. v. '76 Land & Water Co., 5 Cal. Unrep. 292, 44 P. 176; 27 Cyc. 1669; Moulton v. Cornish, 138 N.Y. 133, 33 N.E. 842, 20 L. R. A. 370.)

"The owner of property mortgaged at the time suit is brought for foreclosure of the mortgage or the sale of the mortgaged premises, whether he be the original mortgagor or his successor in interest, is an indispensable party to the suit. A decree without his being made a party will not bind him or parties claiming under him, although the latter may have acquired their interest after the suit was commenced." (Terrell v. Allison, 21 Wall. (U.S.) 289, 22 L.Ed. 634.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought by what is known as a Carey act company against a settler upon lands under said company's canals, to foreclose a lien on the interest which the settler has in the land and water right. The action is based on contracts between the plaintiff corporation and the defendant, whereby the company sold and the defendant purchased, water rights for the irrigation of certain lands described in the complaint.

The complaint alleges four separate causes of action and the prayer is for a judgment and decree for the amount claimed in each cause of action, and for a foreclosure sale of whatever interest the defendant has in and to such water rights and the said lands.

To this complaint the defendant demurred to each cause of action, the demurrer being based on three grounds: (1) That the complaint does not state a cause of action; (2) That paragraph 9 of each cause of action is ambiguous, uncertain and unintelligible, in that the complaint pleads "That the plaintiff has performed all of the conditions of the said contract required to be performed to entitle it to the relief sought in this action," and that from said allegation defendant cannot determine what requirements, if any, have been performed on the part of the plaintiff sufficient to enable the defendant to answer; and (3) That there is a defect consisting of nonjoinder of parties defendant in that the complaint shows that the title to the land is in the federal government and that the action is against the defendant C. W. Dill and the United States is not made a party, and the plaintiff seeks in its complaint to obtain a fee simple title to the land.

Said demurrer was overruled as to the first two grounds and sustained as to the third, thereby holding that the United States was a necessary party to said action. The plaintiff was given ten days in which to file an amended complaint, but it declined to amend, and the court entered a judgment of dismissal. From that judgment this appeal was taken.

The only question presented on this appeal is whether the court erred in sustaining the demurrer upon the ground that the United States was a necessary party to the action.

Under sec. 4101, Rev. Codes, it is provided that all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs except when otherwise provided in the code. (Boise City v. Wilkinson, 16 Idaho 150, 102 P. 148.) Sec. 4102, as amended by Laws of 1909, p. 20, provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved. Sec. 4105 provides that of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, but if the consent of anyone who should have been joined as plaintiff cannot be obtained, he may be made a defendant. (As to "parties," see, also, First Nat. Bank v. Bews, 3 Idaho 486, 31 P. 816; Van Camp v. Board of Commrs., 2 Idaho 29, 2 P. 721.)

The general definition of "parties to an action" is well stated in 15 Ency. Pl. & Pr., p. 463, as follows "The term 'parties to an action'...