Peters v. Dona

• Decision Date: 18 February 1936
• Docket Number: 1927
• Citation: 49 Wyo. 306,54 P.2d 817
• Parties: PETERS v. DONA, ET AL. (FIRST NATIONAL BANK OF GREEN RIVER, INTERVENER)
• Court: Wyoming Supreme Court

54 P.2d 817

49 Wyo. 306

PETERS v. DONA, ET AL. (FIRST NATIONAL BANK OF GREEN RIVER, INTERVENER)

No. 1927

Supreme Court of Wyoming

February 18, 1936

APPEAL from the District Court, Sweetwater County; H. R. CHRISTMAS Judge.

Action by Ernest Peters against Guy Dona and others, wherein defendant Dona filed a cross-petition, the First National Bank of Green River intervened, and Miriam (Marian) Peters was made a party to the suit by an amendment to the cross-petition. Judgment for cross-petitioner Dona, and plaintiff, cross-defendant Peters, and the intervener appeal.

Reversed with instructions.

For the appellants the cause was submitted on the brief of T. S Taliaferro, Jr. and A. L. Taliaferro, of Rock Springs Wyoming.

The Bankruptcy Act, Section 110 (a) (5) provides in general that the cash surrender value of a life insurance policy, payable to insured or his estate, passes to the trustee as an asset. Cohen v. Samuels, 245 U.S. 50; Cohn v. Malone, 248 U.S. 450. The trial court erred in overruling appellant's demurrer to the cross-petition and counterclaim of Guy Dona. The mechanics' lien law of Wyoming was adopted from the Missouri law practically in its entirety, with the exception of a few terms or words. Sec. 66-512, R. S. 1931; Sec. 3165, Volume I, R. S. Mo. 1929; Becker v. Hopper, 23 Wyo. 220; McPherrin v. Supply Co., (Mo.) 211 Mo.App. 385, 242 S.W. 136. Both courts are agreed that the original or principal contractor is a "necessary party," where timely objection is made by the owner. We direct attention to the similarity between Section 66-518, R. S. 1931 and Section 3172, Vol. I, R. S. Mo. 1929. If anything, the Wyoming statute is broader than the Missouri statute. Fury v. Boeckler, 6 Mo.App. 24, decided prior to our adoption of the statutes, was adopted with it. This case is much stronger than the Missouri case above cited. The case of Bombeck v. Devorss, 19 Mo.App. 38, was also adopted with the Missouri statute, which sustains our contention. Redlow v. Lumber Company, (Mo.) 189 S.W. 589, requires the mortgagee to be made a party in lien foreclosure suits. American Radiator Company v. Connor Plumbing Company, (Mo.) 211 S.W. 56, a recent case, holds that materialmen and laborers may sue a subcontractor, and the owner, and that laborers and materialmen do not come under the Missouri statute. The Missouri statute only requires "parties to the controversy" to be joined as defendants. The American Radiator Company case is therefore not in point. Blanshard v. Schwartz, (Okla.) 54 P. 303, heretofore referred to as bearing upon the issues in the case at bar, is clearly not in point. Where all the parties necessary to a complete determination of the action were brought in at its commencement, it was improper to admit into the case other parties for the purpose of stating by cross-petition a new case, which could not be determined without the presence of still other parties. Hillier v. Stewart, 26 O. S. 658. Elmer Wahlstrom was not a party to the suit filed by Ernest Peters, and to make him a party to that suit, and long after to make Miriam Peters a party, and to omit making Overland Lumber Company, Kaehler and Ellis, Mason and Quinn and A. J. Mrak, who were also lienors, was an abuse of the court's discretion. Pomeroy's Code Remedies, Section 317, 5th Ed. Guy Dona knew that Miriam Peters was exercising the rights of ownership over this property, and it was his duty to show Miriam Peters in his notice of lien as the owner. Sec. 66-508, R. S. 1931; Wyman v. Quayle, 9 Wyo. 326; Davis v. Big Horn Lumber Company, 14 Wyo. 517; see also Sec. 66-512, R. S. 1931 and Rumsey v. Baker, 35 Mo.App. 217; Sec. 66-508, R. S. Appellants question the sufficiency of the notice of lien. It is not definite as to the date the right of lien accrued. Gen. Etc. Company v. Elev. Co., (Mo.) 65 S.W. 318. The limitation does not begin to run until the last item called for by the contract is furnished, or the last work under it is done. U. S. Water Company v. Sunny Company, (Mo.) 133 S.W. 371; Darlington v. Harris, (Mo.) 80 S.W. 686. The "Notice of Lien" was not verified by the oath of claimant as is required by statute. Orr Company v. Needum, (Ill.) 61 Am. St. Rep. 151; Davis v. Lumber Company, 14 Wyo. 523. Guy Dona, as appears from his cross-petition against Miriam Peters knew the owner or owners of the property. It was therefore incumbent upon him to include Miriam Peters in the notice of lien. Sec. 66-521, R. S. 1931; Towner v. Remich, 19 Mo.App. 205. Tenants in common cannot ordinarily by their contract bind their co-tenants. Phelan v. Brick Company, (Wyo.) 188 P. 354. Over the objection of the appellants, the court admitted defendant's exhibits 2, 4, 5, 7, 8, 9, 10 and 11, all clearly incompetent as evidence against the appellants Miriam Peters and the First National Bank of Green River. The appellants, First National Bank of Green River and Miriam Peters, protested that the judgment rendered by Judge Christmas on the 21st day of January, 1935, ordering a foreclosure of the premises, is especially reversible and prejudicial error as against themselves, and should be reversed and vacated. The judgment is contrary to law. In analyzing the Missouri decisions, the conclusion is irresistible that the respondent Dona should have made the party with whom he contracted, Elmer Wahlstrom, a party defendant, within six months after the filing of his notice of lien, and that the claim of lien expired after six months.

For the respondent, Guy Dona, the cause was submitted on the brief of W. A. Muir and Glen G. Stanton, of Rock Springs.

The doctrine of laches has no application to this case as against the respondent Guy Dona. 21 C. J. 214-237. There is no evidence before the court that appellants have lost any legal right or suffered any injury or damage, or that their condition or legal status has in any manner been changed by the failure to make the defendant, Elmer Wahlstrom, a party defendant. The debt of Dona was not affected by the discharge of Wahlstrom in bankruptcy. Bankruptcy Act, 1898; Collier on Bankruptcy, 8th Ed., pp. 309, 325, 181. Custard v Wiggerson, (Wisc.) 17 Am. B. R. 337. Exemptions permissible under the bankruptcy act include property made exempt by state laws. Collier on Bankruptcy, 8th Ed., pp. 155, 823. The policies in this case are exempt under the Utah statute. Sec. 104-37-13, R. S. Utah, 1933; Holden v. Stratton, 198 U.S. 202; Burlingham v. Crouse, 228 U.S. 920; Lockwood v. Bank, 190 U.S. 294. The answer and cross-petition of the lien claimant was filed in court within the six months limitation period. The statute of limitations was not pleaded by Ernest Peters in his demurrer. Union Stockyards Bank v. Maika, 16 Wyo. 141; Watts v. Lawrence, 26 Wyo. 367. The cases cited by appellant on careful examination are readily distinguishable from the facts and circumstances of the present case. This court in Becker v. Hopper refused to follow the Missouri decisions, even as to necessary parties, and the effect of failure to make the contractor a party. Under the Wyoming statute (Sec. 66-522, R. S. 1931) a contractor is liable to the owner before or after the expiration of the statute of limitations, and it was evidently intended that the contractor could be made a party at any time during the pendency of the action. The question is reviewed in American Radiator Company v. Heating Company, (Mo.) 211 S.W. 56. The Supreme Court of Missouri in construing Section 8233, which is our Section 66-522, R. S. 1931, does not hold that the contractor, under that section of the statutes, must be made a party prior to the expiration of the period of limitations. Moreover the Statute of Limitations must be pleaded. American Radiator Company v. Heating Company, (Mo.) 211 S.W. 56. The facts in the case of McPherrin v. Supply Company, 242 S.W. 136, relied on by appellants to sustain their contention that the principal contractor is a proper and necessary party, are quite different from those in the case at bar. As to the propriety of bringing in new parties, we cite 47 C. J. 147; Pomeroy's Code Remedies, 5th Ed., Sec. 316, page 469. The case of Redlon v. Lumber Company, (Mo.) 189 S.W. 589, is not in point. A mechanic's lien may be foreclosed through the agency of a complaint in intervention filed within the prescribed time in a pending suit to foreclose other mechanics' liens. Bancroft's Code Pleading, Vol. 3, page 3087, Sec. 1843; Blanshard v. Schwartz, 54 P. 303. The Oklahoma statute referred to in the above case and the Kansas statute are identical with our statute Sec. 89-514, R. S. 1931. Under the Wyoming code, the answer may contain several defenses, counterclaims and set-offs. Secs. 89-1015, 1016, R. S. 1931. When it appears that a new party is necessary to a final decision upon the counterclaim, the court may permit the new party to be made by a summons to answer the counterclaim, or may direct the counterclaim to be stricken out of the answer. Bates' New Pleading, Vol. 1, p. 360; 57 C. J. 403, 414; Wyman v. Herard, 59 P. 1009; Weaver v. Richardson, 21 Wyo. 343; Bank v. Nicholson, 36 Wyo. 221; Skillen v. Harris, (Mont.) 277 P. 803. Respondent's lien instrument is valid. Sec. 66-508, R. S. 1931; 40 C. J. 219, 221, 223; McNamee v. Rauch, (Ind.) 27 N.E. 423. As to the alleged mistake in the description, we cite Martin v. Simmons, (Colo.) 18 P. 535; Smith v. Newbaur, (Ind.) 42 N.E. 40; Bassett v. Menage, (Minn.) 53 N.W. 1064; Sec. 66-510, R. S. 1931. The statute Sec. 66-508, R. S. 1931 requires a mechanic's lien to be filed and does not require it to be recorded. There is a distinction between the two terms. Lincoln County v. Water Company, 130 P. 788; Albany Company v. Steel Company, 139 N.E. 565. The statute does not require that the specific date when the...