Wall v. Nay

• Decision Date: 31 July 1860
• Citation: 30 Mo. 494
• Parties: WALL, Respondent, v. NAY et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 494

WALL, Respondent,

v.NAY et al., Appellants.

Supreme Court of Missouri.

July Term, 1860.

1. The sixth section of the act concerning the foreclosure of mortgages (R. C. 1855, p. 1089) allows persons, claiming an interest in the mortgaged property, to be made parties defendant, on motion, in suits for foreclosure, only with a view to the protection of their own interests. It was not designed thereby that a third party should be let into the suit with a view to the protection of the interests of the necessary parties. Such third party must show that some injustice would be done to him by letting judgment go against the other parties.

2. A person is not entitled to the reversal by the supreme court of a judgment for error committed against another.

Appeal from Lafayette Circuit Court.

It is sufficient to state, in addition to the facts stated in the opinion of the court, that at the same term at which Winsor was permitted to come in and file his answer, the plaintiff admitted the facts stated therein, and the cause was submitted to the court and judgment rendered for plaintiff.

Ryland & Son, for appellants.

I. The plaintiff showed no cause why an order of publication should be made against Nay. (R. C. 1855, p. 1222-4.) The plaintiff can not, under leave of court to file an amended petition, file one containing the original cause of action, and also other, different, distinct, and independent causes of action. This is bringing a new suit without any new summons. Notes coming due on the day before the amendment was made were embraced in such amended petition. (Holly v. Doane, 26 Mo. 186.) The judgment rendered is erroneous. The parties Nay and Durst were never properly before the court on the amended petition. The order of publication is not sufficient. Parties are not properly notified.

Hicks & Silliman, for respondent.

I. Winsor by his showing had no interest in the mortgaged property at the institution of this suit. He came in under the sixth section of the act concerning mortgages. (R. C. 1855, p. 1089.) Under that section he could only answer in bar of the deed, debt, or damages claimed. These were the only issues he could raise. The action of the court was regular. There is no judgment or decree against Winsor from which he could appeal. He only appeals from technical errors supposed to have been committed against Nay, and not for errors committed against himself, or growing out of matters set up in his answer. Nay does not complain. Defendant's interest is not injuriously affected by the judgment.

NAPTON, Judge, delivered the opinion of the court.

The sixth section of the act concerning mortgages provides that “any person claiming an interest in the mortgaged property may, on motion, be made defendant to any such proceedings, and may answer in avoidance or bar of the deed, or debt or damages, and issue shall be made and tried as in ordinary civil actions.” Under this section the appellant, Winsor--who purchased the mortgaged premises after the commencement of this suit against Nay, the mortgagor--and Durst, the occupant of the land, was permitted to come in and defend. The suit had been progressing for upwards of eighteen months when Winsor applied to be made a party. The answer filed by Winsor set up a variety of objections to the proceedings. It alleged that there was no affidavit to authorize the order of publication against Nay; that the amendment made to the petition, at the second or third term after the suit was brought, embraced new causes of action and ought not to have been allowed; that the notice by publication against Nay did not embrace all the causes of action contained in the amended petition; that judgment by default against Nay and Durst was irregular; that the term when this answer was filed was not the trial term. In short, the answer contained a general review of the proceedings of the court against Nay and Durst had before Winsor came into the suit, and alleged them to be informal, irregular and illegal. There was no allegation that the deed was not valid or duly executed and binding upon all the parties to it, or that the money it was intended to secure was not due, or had been paid, or any part of it. On the contrary, these facts were admitted.

The only question we consider to be presented in the record is whether this answer is such an one as was contemplated by the section of the statute above referred to. If it was not, it ought to have been stricken out or...