Kornegay v. Farmers' & Merch.S' Steam-boat Co

• Decision Date: 20 October 1890
• Citation: 12 S.E. 123,107 N.C. 115
• Parties: Kornegay. v. Farmers' & Merchants' Steam-Boat Co.
• Court: North Carolina Supreme Court

107 N.C. 115)

12 S.E. 123

Kornegay.

v.Farmers' & Merchants' Steam-Boat Co.

Supreme Court of North Carolina.

Oct. 20, 1890.

Enforcement of Lien on Steam-Boat—Parties.

In an action to enforce a lien on a steamboat for machinery placed therein, a motion by defendant that a subsequent mortgagee of the vessel be made a party defendant is properly denied, as such mortgagee is not a necessary party.

Appeal from superior court, Craven county; T. B. Womack, Judge.

This action is brought, as stated in the case settled on appeal for this court, to recover of the defendant $2,000 on a contract made by the plaintiffs with the defendant for certain machinery described in article 2 of the complaint, and for $79.16 for the value of certain articles furnished to defendant, as alleged in article 1 of the second cause of action in the complaint, and to have the same declared a lien on the steam-boat Carolina, described in the complaint; and that said steam-boat be sold to satisfy the same, under the contract, lien, and notice set out in Exhibit A, which was also a part of the complaint. The defendant, in its answer, denied the allegations of the complaint, and set up the fact that said steam-boat had been conveyed to T. E. Hooker, by a bill of sale which is dated January 25, 1884, and was recorded in the United States customhouse January 26, 1884. At the May term, 1886, of said court, the cause was referred to Henry R. Bryan, Esq., pursuant to the order in the record. The cause came on for a hearing upon the report of the referee, and the exceptions filed thereto by the defendant, and his honor found the facts to be as reported by the referee, and adopted them as his own. The defendant thereupon moved that the plaintiff be required to make T. E. Hooker a party to the action. Motion refused. Exception by defendant. The exception of the defendant was then overruled, to which defendant excepted, and judgment rendered as set out in the record. To which judgment defendant excepted, for error by the court as above set out.

Green & Stevenson and W. W. Clark, for appellant.

Clement Manly, for appellee.

Merrimon, C. J., (after stating the facts as above.) After the court had found the facts of the case in the course of the action, and was ready to proceed to give judgment, the defendant moved that J. E. Hooker be made a party thereto, on the suggested ground that the defendant had executed to him a mortgage of the vessel mentioned to secure his debt subsequent to the lien thereon of the plaintiff specified in the complaint. That such person had such mortgage did not render him a necessary party to this action. Any rights, legal or equitable, acquired by him by virtue of it, were subsequent, subject to and distinct from the lien of the plaintiff. The plaintiff's cause of action was distinctly against the defendant, not against the mortgagee; his rights in litigation did not at all depend upon the rights or claims of that mortgagee; nor had the latter rights, or cause of action as against the plaintiff and the defendant, as to the plaintiff's cause of action in litigation. Granting that the mortgagee had some interest in the vessel, it was acquired subsequent to the plaintiff's first lien, and it was not necessary to litigate that interest, settle and determine the same, in order that the plaintiff's cause of action should be settled and determined. It is only " when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." Code, §189; Colgrove v. Koonce, 76 N. C. 363; Wade v. Sanders, 70 N. C. 277; McDonald v. Morris, 89 N. C. 99; Boyle v. Robbins, 71 N. C. 130. The plaintiff alleged no cause of action against the mortgages mentioned, nor does he seek redress against it. If the title to the vessel was in the latter, the defendant might have made that a defense; indeed, it seems, that it intended to make such defense. Morehead v. Railroad Co., 96 N. C. 362, 2 S. E. Rep. 247; Sons...