Jenkins v. Carroll

• Decision Date: 06 December 1910
• Citation: 42 Mont. 302
• Parties: JENKINS v. CARROLL.
• Court: Montana Supreme Court

42 Mont. 302

JENKINS

v.CARROLL.

Supreme Court of Montana.

Dec. 6, 1910.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by Mary Jenkins against Carrie May Carroll. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. E. Carroll and Chas. O'Donnell, for appellant. Breen & Hogevoll, A. B. Melzner, and L. P. Donovan, for respondent.

BRANTLY, C. J.

Action by the respondent for foreclosure of a mortgage and to obtain equitable relief in aid thereof. On May 28, 1900, the defendant Celia Davison and her husband, Allen Davison, executed and delivered to the respondent their promissory note for the sum of $1,500, due one year after date and stipulating for the payment of interest monthly at the rate of 1 per cent. per month. To secure the payment of the note and interest and also such taxes, insurance, etc., as the respondent might be compelled to pay in order to preserve and protect the property, the Davisons executed and delivered to the respondent a mortgage upon lot 6 in block 6 of the Leggat & Foster addition to the city of Butte. The property was owned by Celia Davison. Allen Davison is now dead. Prior to this transaction, and on January 19, 1899, Calia Davison commenced an action in a justice's court in Silver Bow county, against one James Dougherty to recover judgment for the sum of $65 alleged to be due on account for board, together with interest. As a defense, Dougherty interposed a counterclaim for money due on account of labor performed at the instance and request of plaintiff. The result was a judgment in favor of plaintiff for $76.30. Dougherty thereupon took his appeal to the district court. Before any proceedings were had in the cause in the district court, the plaintiff, upon notice to Dougherty's counsel, made special appearance and moved for a dismissal of the appeal. The motion was denied. A trial upon the merits, had on December 19, 1899, the plaintiff appearing by counsel, resulted in a judgment in defendant's favor for $46.80. On January 27, 1900, the sheriff of Silver Bow county, having levied upon the property described in the mortgage under an execution issued upon this judgment, sold it at public auction to W. E. Carroll for the sum of $63.80 and issued to him the usual certificate of sale, which was duly filed with the clerk of Silver Bow county. On January 29, 1901, no redemption having been made, the sheriff executed to Carroll a deed. Thereafter the appellant, Carrie May Carroll, by mesne conveyances became the owner of such interest as W. E. Carroll acquired under the execution sale and his sheriff's deed. The complaint contains allegations sufficient to warrant a decree in foreclosure as against Celia Davison. As ground for relief against the appellant, the complaint, after setting out in detail the proceedings in the justice's and district courts resulting in the judgment in the case of Davison v. Dougherty, alleges that the judgment of the district court in favor of Dougherty and all of the proceedings thereunder were void, because that court was without jurisdiction to entertain the appeal, and to render judgment on the merits. The specific allegations upon which this conclusion is based are the following:

“(7) That at the time the said (copy of) notice of appeal was served upon the attorney of Celia Davison, to wit, the 24th day of January, 1899, the said notice of appeal was not filed with said justice of the peace above named. That the said notice of appeal was not filed with said justice of the peace until the 25th day of January, 1899, and that no (copy of) notice of appeal was ever served upon the said Celia Davison, or her attorney, on the said 25th day of January or subsequent thereto; and that the said failure to serve said notice of appeal in the manner provided by law appeared at all times from the records and papers in said cause.

“(8) That on the 25th day of January, 1899, the said James Dougherty filed in the said justice court his undertaking on appeal in the said action, entitled Celia Davison, Plaintiff, v. James Dougherty, Defendant, which said undertaking was executed by Phil. J. Murphy and John J. Quinn, as sureties, and conditioned as by law required, and that on the 28th day of January, 1899, the said Celia Davison, plaintiff in the said cause, duly excepted to the sufficiency of the said sureties upon the said undertaking, filed in the said action, and did duly serve upon the said William E. Carroll and file with the said justice of the peace his [her?] exceptions to the sufficiency of said sureties.

“(9) That on the 18th day of February, 1899, the said James Dougherty, defendant in said action, filed in the said justice court in the said action another undertaking on appeal, executed by Charles Schatzlein and William Harrison, as sureties, and conditioned as by law required.

“(10) That the plaintiff is informed and believes that none of the said parties named as sureties in said undertakings ever justified and that no notice was ever given that they or any of them would justify, and that Celia Davison never waived justification of the sureties upon said undertakings on appeal or either of them”

The defendant Celia Davison suffered default to be entered against her; and on December 8, 1908, the court, after hearing the respondent's evidence, rendered and caused to be entered a decree in foreclosure against her-directing the sale of her interest in the property, whatever it might be. The court allowed the action to proceed as to the appellant. In her answer, the appellant, besides relying upon various provisions of the statute of limitations as a bar to the action against her, alleges that the respondent had full knowledge of the condition of the title of Celia Davison at the time she accepted her mortgage and put in upon record, and that at that time she knew that W. E. Carroll had a prior lien thereon by virtue of his purchase at the sheriff's sale and the certificate issued to him in pursuance thereof. She then deraigns her title by various mesne conveyances to herself, and alleges that she paid full consideration for the property, without knowledge of any claim of respondent thereto. She denies that there was any error or irregularity in the proceedings in the case of Davison v. Dougherty, by reason of which the district court was without jurisdiction to render the final judgment therein. At the trial had on June 9, 1909, it was tacitly assumed that all proceedings had under the execution issued upon the judgment resulting in the deed to W. E. Carroll were regular. The contention was that the district court was without Jurisdiction to try the case of Davison v. Dougherty and to render judgment therein, because it appeared that Dougherty, in taking his appeal to the district court, had served a copy of his notice of appeal upon the plaintiff before filing the original with the justice, instead of filing before serving, and because the sureties on the undertaking had failed to justify upon notice as required by the statute. On December 9, 1909, the court, having had the case under advisement until that time, made and filed its findings of fact that the allegations contained in paragraph 7 of the complaint were true, but that those contained in paragraphs 8, 9, and 10 were not true. and rendered and caused to be entered a decree declaring appellant without title or interest in the property. No finding was made disposing of the plea of the statute of limitations. The appeals are from this decree and from an order denying appellant's motion for a new trial. When the record was filed in this court, the respondent filed her motion to dismiss the appeals upon the ground that two of the adverse parties, Tobias Frederickson and Celia Davison, had not been served with notice of the appeals, and because it appeared from the record that the appellant is not an aggrieved party. Disposition of the motion was reserved until the hearing on the merits.

1. On the motion to dismiss the appeals. Neither Frederickson nor Celia Davison was served with the notice of intention or of the appeals. It appears that subsequent to the commencement of the action the appellant, by bargain and sale deed, conveyed her interest in the property to Frederickson; Frederickson, however, was not made a party defendant by substitution or otherwise. An “adverse party,” within the meaning of the statute (Rev. Codes, § 7100), is one “who has an interest in opposing the object sought to be accomplished by the appeal.” Power & Bro. v. Murphy, 26 Mont. 387, 68 Pac. 411;Merk v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519;Anderson v. Red Metal Min. Co., 36 Mont. 312, 93 Pac. 44;Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904. In Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103, it was said: “Whether a party to the action is ‘adverse’ to the appellant must be determined by their relative position on the record and the averments in their pleadings, rather than from the manner in which they may manifest their wishes at the trial, or from any presumption to be drawn from their relation to each other, or to the subject-matter of the action in matters outside of the action. *** If his [the party's] position on the record makes him nominally adverse, he must be so considered for the purpose of an appeal from the judgment thereon.” Frederickson not being a party to the record is not an adverse party. It was therefore not necessary to serve him with either notice.

Is Celia Davison, upon this record, an adverse party? If the whole case had been heard at one time and a single decree had been entered adjudging the rights of all the parties, we should say that she is. The case of Power & Bro. v. Murphy, supra, cited in support of the motion, would be directly in point. That case, like this, was an action to foreclose a mortgage. The defendant mortgagors, Patterson and wife, defaulted. A trial upon the issues presented by the other defend...