Turner v. Binninger
| Decision Date | 25 September 1940 |
| Docket Number | 2179 |
| Citation | 56 Wyo. 188,105 P.2d 574 |
| Parties | TURNER v. BINNINGER ET AL |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Goshen County; SAM M. THOMPSON Judge.
Suit to quiet title to land by W. H. Turner against Webster G Binninger, defendant, for whom was substituted as a defendant Olive May Sage, who filed a motion for leave to intervene and a cross-petition, and Caroline A. Duckworth, Joseph A Stuckey, and Jacob J. Stuckey, made defendants by order of the trial court. From an adverse judgment, plaintiff appeals. On motion to dismiss appeal.
Motion denied.
In support of the motion to dismiss, there was a brief by Erle H. Reid of Torrington.
All three of the defaulting defendants (Duckworth and the two Stuckeys) have rights which would be adversely and injuriously affected by a reversal of this cause on appeal. This court in the case of In re Water Rights in Big Laramie River, 192 P. 680, reviewed the subject of parties defendant on appeal and quoted at length from the authorities on the subject. Upon the petition for rehearing in that case, this court reaffirmed its position, 193 P. 734. In the case of Johnson et al. v. Irrigation Company, 4 Wyo. 164, four of the five water users appealed to the Supreme Court, but one of the appellants in the District Court was not joined either as plaintiff in error or defendant, and it was there held that the absence of a showing why she was not made a party was vital. In the case of Wyoming Hereford Ranch v. Hammond Packing Company (Wyo.) 222 P. 1027, the proceedings were based on the direct appeal statute. It was there held that the City of Cheyenne was not a necessary party, and the motion to dismiss for lack of parties was ultimately denied on the ground that the city was not a necessary party. In the present case, as appears from the record, there is nothing to show actual knowledge of the action on the part of any of the three defaulting defendants, Caroline A. Buck, Joseph A. Stuckey and Jacob J. Stuckey. The record also shows that they are vitally interested and that they were entitled to notice of appeal so that they could defend their rights under the decree of the lower court. We contend that the motion to dismiss should be sustained.
In resistance to the motion there was a brief submitted by Judson P. Watson of Lusk.
Sections of the statute pertinent to this proceeding are # 89-2949 4805, 4902, 4909, R. S. Motions to dismiss are not favorably received, as a hearing on the merits is preferred. 4 C. J. S. 398, 1377 None of the three defaulting defendants has a right or interest which can be affected by a reversal or modification of this appeal, nor have they any right of redemption in said lands. None of them could be held liable for a deficiency judgment. The only opposing parties in this case have been served with notice and are now before the court. Each of the defaulting defendants have had their day in court. The case of Pioneer Canal Company et al. v. Akin, 192 P. 680, was predicated upon a special statute. Section 779, W. C. S. 1910. The case of Hereford Ranch v. Packing Company (Wyo.) 222 P. 1027 is clearly not in point. See also In re Nell's Estate, 214 P. 338; Bank v. Casey, 138 N.W. 897. A grantor of an interested party is not an essential party on appeal. Scott v. Sioux City, 119 N.W. 749; U. S. v. Exploration Company, 203 F. 387. The defaulting defendants had no possible right or interest in the appeal. In preparing the appeal, we conferred with counsel for Olive May Sage on several occasions and offered to serve the defaulting defendants, if, in his judgment, they had any right of interest in the controversy, and he lead us to believe that in his judgment they were not entitled to be served with notice of appeal, not having any interest in the controversy.
This cause is before the court upon a motion to dismiss the appeal proceeding, the motion being filed in behalf of the intervenor, defendant and respondent, Olive May Sage. The question raised thereby is whether certain persons named and served with process as defendants in the district court are necessary parties to this appeal. These are the facts as we understand them:
Caroline A. Duckworth gave a first mortgage dated August 11, 1920, for $ 1500.00, due November 1, 1925, upon certain lands situate in Goshen County, Wyoming. Thereafter, but on the same date, she executed a commission and second mortgage for $ 313.32. The first mortgage ultimately became the property of Olive May Sage by bequest from her deceased former husband, Webster G. Binninger. This second mortgage was subsequently foreclosed by advertisement and the plaintiff and appellant Turner became the purchaser at the sale held thereunder. On March 13, 1939, the Sheriff of Goshen County executed to said Turner a sheriff's deed to the lands aforesaid.
In 1924 Caroline A. Duckworth, the mortgagor, sold to Jacob J. Stuckey, and he to Joseph A. Stuckey, the property involved, subject to these mortgages. Payment in full apparently was never made on the indebtedness undertaken to be secured by either mortgage. Sometime in 1928 Caroline A. Duckworth left Wyoming and has never returned to this State.
The plaintiff Turner on June 12, 1939, commenced in the district court of Goshen County an action to quiet his title to said lands, naming Binninger as defendant therein. July 28, 1939, Olive May Sage filed her motion in said court for leave to intervene in the action and in said motion alleged that Caroline A. Duckworth and the two Stuckeys were proper and necessary parties to a foreclosure of the mortgage held by her. Thereafter, the parties, Olive May Sage and W. H. Turner, stipulated in the action to quiet title that she should be substituted for Webster G. Binninger; that she, Caroline J. Duckworth, and J. J. and J. A. Stuckey should be made defendants; that Olive May Sage should be permitted to file an answer and cross-petition in said action to quiet title and for process against Caroline A. Duckworth and her grantee, J. J. Stuckey, and his grantee, Joseph A. Stuckey. This agreement was approved by the court through appropriate order made.
Accordingly Olive May Sage filed her answer and cross-petition on March 8, 1940, whereby she sought a foreclosure of her mortgage against all other parties involved. The plaintiff, Turner, thereupon filed his separate demurrers to her pleadings. The defendants Caroline A. Duckworth and the two Stuckeys, though duly served with process, filed nothing and did not appear in the action in the district court. That court overruled plaintiff's demurrers and, plaintiff indicating that he would not plead further, trial was had, during the course of which plaintiff introduced no evidence, while Olive May Sage, the intervenor, submitted proof in support of her cross-petition for foreclosure. It appears that one of the questions undertaken to be raised by plaintiff's demurrers was whether the Statute of Limitations had affected the validity of the intervenor's mortgage. Judgment was entered in favor of Olive May Sage and against the plaintiff Turner. Caroline A. Duckworth and the Stuckeys were adjudged to be in default and judgment thereon in intervenor's favor was therefore entered against them. The first mortgage held by intervenor Sage was ordered foreclosed.
Said judgment found among other things that:
"sometime prior to the year 1938 said Caroline A. Duckworth left the State of Wyoming and since that time has resided either in the State of Idaho or the State of Oregon and has never returned to nor resumed her residence in Wyoming, and that the running of the Statute of Limitations against said mortgage debt was tolled by her departure from the State of Wyoming, and that the time of her absence from Wyoming is not to be computed as a part of the period within which action against said debt could be brought, and that the said mortgage debt has not been barred by the Statute of Limitations and is still a valid and subsisting obligation, and the mortgage securing the same is still a valid, subsisting, first and prior lien on the mortgaged premises . . . . . and superior to any right, title or interest of the plaintiff therein; . . . that the interest of the plaintiff W. H. Turner in said lands arises by virtue of the foreclosure of a commission mortgage . . . . of even date with the mortgage of the cross-petitioner (which) expressly recites that it was subject and junior to the mortgage of the cross-petitioner (and was) foreclosed by advertisement (which advertisement) recited that the mortgage premises would be sold subject to a first mortgage of record . . . . . in the sum of $ 1500 (this being the Sage mortgage); that the plaintiff acquired any interest he has in the said lands by virtue of said foreclosure . . . . subject to the cross-petitioner's interest therein, and that the plaintiff is estopped to question the priority of the lien of the cross-petitioner's mortgage . . ."
The judgment found also that the amount adjudged to be due intervenor was "a lien prior and superior" to all the rights of the plaintiff. The lands aforesaid were ordered sold by the Sheriff of Goshen County, foreclosing and forever barring the plaintiff from asserting any rights in the land except under his right of redemption.
Turner brought this appeal after reserving due exceptions to these findings and judgment. His notice of appeal was in due time served upon Olive May Sage, but the defaulting defendants Caroline A. Duckworth, Joseph A. Stuckey and Jacob J. Stuckey, were never served with notice of appeal in the present proceeding. By the motion to dismiss of the intervenor below, Olive May Sage, it is asserted that they...
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