Karlson v. National Park Lumber Co.
Decision Date | 01 August 1928 |
Docket Number | 4977 |
Citation | 46 Idaho 595,269 P. 591 |
Parties | HENRIETTA KARLSON, Respondent, v. NATIONAL PARK LUMBER COMPANY, Appellant |
Court | Idaho Supreme Court |
MATERIALMAN'S LIEN-FORECLOSURE-RES ADJUDICATA.
1. Since under C. S., sec. 7344, materialman's lien may not be foreclosed when there is no structure on the land for which materials were furnished, a judgment in action to foreclose materialman's lien must necessarily determine location and ownership of building, and defendants in such action are estopped from thereafter making any claim to building on theory that location was other than as described in judgment.
2. Action for conversion of building, so far as it affects previous action to foreclose materialman's lien and judgment therein, held to constitute collateral attack.
3. As against a collateral attack, all presumptions are in favor of judgment.
4. Matters which appear from other part of judgment-roll need not be cited in the judgment itself.
5. Finding in foreclosure of materialman's lien that building was situated on certain land being necessary in order for a valid judgment held conclusive on owner made defendant therein and served with process.
APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. George W. Edgington, Judge.
Action for conversion. Judgment for plaintiff. Reversed.
Judgment reversed, with instructions. Costs awarded to appellant.
F. A Soule, for Appellant.
"A right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right question or fact once so determined must, if between the same parties or their privies, be taken as conclusively established." This court has announced this rule in these words, "If a particular point or question is in issue in the second action, and the judgment will depend upon its determination, a former judgment between the same parties will be final and conclusive in the second action if that same point or question was in issue and adjudicated in the first suit." (Southern P. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105; Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579; Elliott v. Porter, 6 Idaho 684, 59 P. 360; Waldron v. Jenkins, 18 Idaho 616, 111 P. 745; Neil v. Hyde, 32 Idaho 576, 186 P. 710; 34 C. J 868, and the hundreds of cases there cited; 2 Black on Judgments, 2d ed., sec. 504.)
A judgment by default is just as conclusive between the parties, upon the parties, upon the matters which were necessary to support the judgment, as one rendered after answer and contest. (Last Chance Min. Co. v. Tyler Min. Co., 157 U.S. 683, 15 S.Ct. 733, 39 L.Ed. 859; 2 Black on Judgments, 2d ed., secs. 508, 697.)
The materialman's lien is primarily on the building. The lien upon the land attaches only as an incident. If no lien attaches to the structure there can be none against the land. (C. S., secs. 7339, 7344; Miller v. Davis, 26 Colo. App. 483, 145 P. 714; Stritzel Lumber Co. v. Edwards, 50 Mont. 49, 144 P. 772; McGill v. McAdoo, 35 Idaho 283, 206 P. 1057; 40 C. J. 271.)
F. A. Miller, for Respondent.
"The test (as to whether a former decree is res adjudicata) seems to be the identity of the rights sued for, the identity of the cause of action, and the identity of the parties." (La Rue v. Kempf, 186 Mo.App. 57, 171 S.W. 588; Neil v. Hyde, 32 Idaho 576, 186 P. 710; Koeppel v. Macbeth, 97 A.D. 299, 89 N.Y.S. 969.)
In this state the important means of identifying real estate is, in the case of urban property the description according to the plat, and where the lienor definitely identifies the property by giving certain lot and block number of a recorded plat as lot 3 of block 33, etc., such identification and description will not sustain a lien for materials furnished and used in the erection or repair of a building on lot 6. (Goodrich Lumber Co. v. Davie, 13 Mont. 76, 32 P. 282; Northwestern Cement etc. Co. v. Norwegian etc. Seminary, 43 Minn. 449, 45 N.W. 868; Nofziger Lumber Co. v. Waters, 10 Cal.App. 89, 101 P. 38; Windfall Natural Gas etc. Co. v. Roe, 41 Ind.App. 687, 84 N.E. 996.)
In Idaho no stock may be issued by a corporation until fully paid for and, therefore, upon the issuance of stock the corporation immediately has the right of action to recover the par value of the stock, and the statute of limitations begins to run from the date of issuance. (C. S., sec. 4728.)
Creditors of a corporation cannot enforce the liability of stockholders for unpaid subscriptions to capital stock after the corporation's right to collect such subscriptions has become barred by the statute of limitations. (Hawkins v. Donnerberg, 40 Ore. 97, 66 P. 691, 908.)
Section 4728 applies "to liabilities for torts resulting in personal injuries," and "such liability is direct and primary; and an action lies directly against the stockholders, and need not be based upon a judgment against the corporation."(Liniger v. Botsford, 32 Cal.App. 386, 163 P. 63.)
An action against a stockholder for corporate tort resulting in personal injury must be brought within three years from the time of such injuries, and such time limit cannot be extended to three years after the recovery of judgment against the corporation for such injuries. (Damiano v. Bunting, 40 Cal.App. 566, 181 P. 232.)
Respondent brought this action for damages for the removal of a house situate on lot 6 of block 33, Parker townsite, Fremont county, Idaho. The complaint alleges respondent is the owner of said lot 6; that prior to the wrongful acts complained of there was a certain dwelling-house on, and attached to, said lot, the property of plaintiff; that on or about October 12, 1923, against her will, defendant forcibly and unlawfully removed said house, and converted the same to its own use to plaintiff's damage, etc. The answer denies there was any house located on said lot 6 belonging to plaintiff, denies the removal or the conversion to its use, and denies that it has damaged plaintiff. Further answering, defendant plead as an estoppel the foreclosure of a mechanic's lien against said house, in which proceeding plaintiff was named as a party defendant. The court found for the plaintiff, fixing her damages at $ 500.
On May 3, 1920, appellant, as plaintiff, commenced an action, in the court below against L. E. Karlson, Leah Karlson, his wife, and Henrietta Karlson, respondent, to foreclose a materialman's lien, alleging in paragraph 2 of the complaint:
Then follow the usual allegations of contract with L. E. Karlson; the furnishing of material for the alterations and repairs to the extent of $ 492.15 "upon the above-described real estate as aforesaid," and the formal allegations relative to the execution and record of the claim of lien; that "all of the real estate above described" is necessary for the convenient use and occupation of said building "upon said premises" and for attorney's fees; the...
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