Pioneer Savings & Loan Co. v. Bartsch
| Decision Date | 02 December 1892 |
| Citation | 53 N.W. 764,51 Minn. 474 |
| Parties | Pioneer Savings & Loan Co. v. Charles Bartsch et al |
| Court | Minnesota Supreme Court |
Submitted on briefs November 23, 1892
Appeal by the plaintiff, the Pioneer Savings and Loan Company from an order of the District Court of Hennepin County, Hooker J., made March 26, 1892, granting the defendants Charles G Hillman and Herman Vogt a new trial.
On June 2, 1890, the plaintiff, a corporation, loaned to defendant Charles Bartsch $ 10,000, and as security for its repayment took his note and a mortgage made by him and his wife upon a lot in Baker's Addition to St. Anthony. Bartsch at the same time gave the plaintiff a bond executed by himself as principal and by Charles G. Hillman, Herman Vogt and Harriet F. R. Burnette as sureties in the penal sum of $ 10,000 conditioned to be void if Bartsch should within four months thereafter complete a certain building on the mortgaged premises, and pay all claims for labor and materials used and keep and maintain the plaintiff's mortgage the first and paramount lien on the lot and building, and pay plaintiff any moneys it should pay by reason of mechanics' liens thereon or for expenses or trouble in the matter.
Afterwards, on January 23, 1891, the Minneapolis Glass Company filed a mechanic's lien on the property for $ 219.80 and interest, for glass furnished Bartsch, and used in constructing the building. On February 20, 1891, the Glass Company commenced an action in the District Court of Hennepin County against Bartsch and wife and this plaintiff to foreclose the lien. They were all three personally served with the summons in that action, and such proceedings were had that on March 21, 1891, judgment was entered, on default of any answer in the case, against Bartsch for $ 239.07, and decreed to be a first lien on the property and ordering it sold to pay the judgment. The Pioneer Savings and Loan Company gave no notice of the pendency of that action to the sureties in the bond, nor did it ask Bartsch to defend the action or protect its interests, but on March 28, 1891, it paid the judgment and brought this action upon the bond to recover the money so paid.
Hillman and Vogt answered that they had no notice or knowledge of the mechanic's lien or of the action to foreclose it, and denied that it was paramount to the lien of the mortgage. The issues were tried before the court without a jury October 12, 1891. The plaintiff offered in evidence the judgment roll in the case of the Minneapolis Glass Company against it and Bartsch. The defendants objected, but it was received and they excepted. Plaintiff gave no other evidence of the mechanic's lien or of its being paramount to the lien of its mortgage. When the evidence was all in, the defendants Hillman and Vogt moved the court to dismiss the action on the ground that notice of the pendency of the former action was not given them, and on the ground that the value of the materials furnished by the Glass Company had not been shown, and that the evidence was not sufficient to sustain a judgment against them. Their motion was overruled, and they excepted. The court made findings and ordered judgment for the plaintiff for $ 239.07 and interest and costs.
The defendants Hillman and Vogt moved the court on a case containing all the evidence for a new trial, which was granted and plaintiff appeals.
Order affirmed.
Geo. D. Emery, for appellant.
Geo. F. Edwards, for respondents.
A judgment against the principal in a bond of this nature without notice to the sureties of the pendency of the action is not evidence against the sureties. McKellar v. Bowell, 4 Hawks, 34; Morris v. Lucas, 8 Blkf. 9; King v. Norman, 4 C. B. 884; Gilinan v. Strong, 64 Pa. 242; Johnson v. Thompson, 4 Bibb, 294; Stephens v. Shafer, 48 Wis. 54; DeGreiff v. Wilson, 30 N.J.Eq. 435; Bridgeport Ins. Co. v. Wilson, 34 N.Y. 275; Binsse v. Wood, 37 N.Y. 526; Huzzard v. Nagle, 40 Pa. 178.
It seems to us that the determination of this appeal hinges upon the single question whether the judgment in a previous action by the Minneapolis Glass Company against one Bartsch and the present plaintiff was evidence against the present defendants of anything except the fact of its recovery; for, if it was, we think it would be conclusive evidence against them of every fact necessary to be found in order to recover such a judgment.
Bartsch was negotiating for a loan of money from the present plaintiff, to be secured by mortgage on certain real estate and, as an inducement to plaintiff to make the loan, agreed to erect and complete on the premises a certain building, the construction of which, it is fairly inferable from the language of the bond hereinafter described, had been already commenced; but, as the real estate and building might be or might become holden and liable for liens and claims of mechanics and others, the plaintiff exacted of Bartsch a bond executed by himself as principal and the other defendants as sureties, conditioned that Bartsch should erect and complete the building within a specified time, and pay or cause to be paid all bills, claims, and demands of laborers, material men, and others for labor performed and materials furnished for such building, and used therein, which were then, or which might become, liens on said real estate or the building thereon, and "should keep and maintain the security or mortgage (to the plaintiff) the first and paramount lien on said real estate, building, and improvements thereon," and pay and reimburse the plaintiff for all moneys paid out in said matter or by reason of said claims, liens, etc., and reimburse it for all expenses incurred, moneys paid out, and for all time, trouble, and work in and about...
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