Lowe v. Turner

• Decision Date: 01 January 1867
• Citation: 1 Idaho 107
• Parties: Edward Lowe, Respondent, v. R. Turner Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 107

Edward Lowe, Respondent, v. R. Turner Et Al., Appellants.

Supreme Court of Idaho

January 1, 1867

TENANTS IN COMMON-JOINT LIABILITY-JUDGMENT.-Action against T. and S for the foreclosure of mechanic's lien. The work was performed between the 2d of August, 1863, and the 30th of November, 1865. The defendants were tenants in common of the encumbered premises at the time of commencing this suit. Held,

1. That if the defendants were liable at all to the plaintiff, L they were jointly, and not jointly and severally liable; and 2. That a separate, personal money judgment could not be entered against one of the defendants by default.

JUDGMENT-JOINT DEBTORS.-A judgment cannot be rendered against the property generally and against one of the owners thereof in a right of action clearly against all jointly.

PRACTICE-JUDGMENT.-It is error to enter judgment against one of the defendants, after having sustained a demurrer to the complaint upon the ground that such pleading "does not state facts sufficient to constitute a cause of action," without first amending the same.

IDEM.-In cases of trial, the plaintiff should recover such judgment as he shows himself entitled to under the pleadings and proof.

IDEM.-When judgment is rendered upon the default of a defendant, the recovery must follow the prayer of the complaint.

PRESUMPTIONS-COURTS OF RECORD.-All presumptions and intendments are in favor of the regularity of the proceedings of courts of record.

APPEAL from the Second Judicial District, Boise County.

Action for the foreclosure of a mechanic's lien, praying for a decree of sale of the premises to satisfy the demand, the encumbered premises being the "Warm Springs," situate near Idaho City in Boise county. Sims, one of the defendants, appeared and demurred to the complaint under the sixth subdivision of section 40 of the Practice Act. This demurrer the court sustained. Afterward judgment by default was allowed against Robert Turner, who did not appear in the action in the court below. This judgment was for the sum of seven hundred and sixty-nine dollars and twenty-five cents, and costs of suit; but there was nothing said about the mechanic's lien.

Gilbert & Henly, for the Appellants, cited Reynolds v. Harris, 9 Cal. 338 ; Lamping v. Hayatt, 27 Cal. 300 ; Van Dorn v. Tjader et al., v Nev. 380, 90 Am. Dec. 498; Gage v. Rogers, 20 Cal. 91 ; Lattimer v. Ryan, 20 Cal. 628 ; Burling v. Goodman, 1 Nev. 314. C. Sims, for the Respondent.

CUMMINS, J.,

delivered the opinion of the court,

McBRIDE C. J., concurring.

This suit was commenced for the foreclosure of a mechanic's

lien on certain property described in the complaint as the "Warm Springs property," including one hundred and sixty acres of land, with several buildings thereon. One of the defendants, Sims, appeared in the court below and demurred to the complaint on the ground that "it did not contain facts sufficient to constitute a cause of action." This demurrer the court very properly sustained. There was, however, no judgment rendered in favor of Sims for his costs, or dismissing him from the action. Neither was there any amended complaint ever filed. After disposing of this demurrer, the plaintiff took a several personal judgment by default against Robert Turner for the whole amount claimed. It seems to be admitted that the court below held the mechanic's lien, attempted to be secured by the plaintiff, entirely insufficient in law to create a lien upon the property described in the complaint, although the record contains nothing of this, unless it is by inference from the fact of entering a personal judgment against one of the defendants. The errors complained of by the appellants are contained in the record, and the first to which our attention is directed, which is the most material, is this: Had the court power to enter a personal separate judgment against one of the defendants?

The complaint does not allege that the work and labor was performed under a contract with the defendants, or either of them, but simply for the owners of the property, without showing who they were. The work was performed between August 2, 1863, and November 30, 1865. It is further averred that at the commencement of this action, in January, 1866, the defendants were owners of the property as tenants in common, authorizing the inference that they were not the owners when the work was being carried on. The only conclusion which we can arrive at from this state of facts is that these defendants were sued, not because they were the parties at whose instance the work was done, for we have seen that this conclusion is unwarranted by the pleadings, but because they were the owners of the property sought to be charged with the lien at the time the suit was commenced. If we are correct in this conclusion, and certainly no other is legitimately deducible from the record

before us, the defendants were jointly liable, if liable at all. They were holden for the demand only so far as they were the owners of the property asked to be sold. Their interest in that, it is alleged, was that of tenants in common, Turner owning two-thirds and Sims the remaining one-third. Unless their liability was joint and several, the plaintiff would have had the undoubted right to have sued but one of the parties made defendants in this action, if he had so desired who was only a part owner in the premises, recover a judgment and decree of sale of the entire property to satisfy his claim, although this should include the interest of the other cotenant who was not joined in the action, a proposition which cannot be seriously contended for by anyone. As before remarked, then, the very foundation of their liability rests upon their ownership in the property, which was joint, and not upon any personal liability to the plaintiff. It is nowhere alleged that they or either of them procured the...