Watters v. Treasure Mining Co.

• Decision Date: 14 December 1915
• Docket Number: No. 1821.,1821.
• Parties: WATTERSv.TREASURE MINING CO. ET AL.
• Court: New Mexico Supreme Court

21 N.M. 275

153 P. 615

WATTERS

v.TREASURE MINING CO. ET AL.

No. 1821.

Supreme Court of New Mexico.

Dec. 14, 1915.

Syllabus by the Court.

Where parties have separate rights and interests under a decree, and unless joinder is essential to the jurisdiction of the appellate court, the nonjoinder of parties, either as appellants or plaintiffs in error, or as appellees or defendants in error, will generally have no further effect than to preclude any investigation or adjudication which will affect the rights of the parties not joined. The provisions of our statute (sections 4473-4476, Code 1915) contain no requirement to the effect that all parties to the proceeding in the court below shall be brought into this court, in order that this court may acquire jurisdiction of the cause.

Where necessary parties appellant, under the provisions of section 4476, Code 1915, have applied to become parties appellant, a motion to dismiss the appeal for want of proper parties, although filed prior to such application of said additional parties, will be denied.

The ignorance or negligence of counsel is not a sufficient excuse for failure to have citation issued to proper or necessary parties on appeal.

The signing as surety of appellant's supersedeas bond by a proper or even necessary party appellee does not require the quashing of such bond and supersedeas as insufficient. The only effect of such act is to prevent such appellee from enforcing the decree in his favor, pending the appeal.

This court has power to require additional and sufficient supersedeas bond, to protect an appellee against loss, pending the appeal.

Appeal from District Court, Socorro County; M. C. Mechem, Judge.

Action by Thomas E. Watters, as trustee, against the Treasure Mining Company and others. From judgment for plaintiff, defendants appeal. Motion to dismiss appeal and quash supersedeas denied, application to be made parties appellant allowed, and motion for leave to have citation served on absent lien claimants denied.

This court has power to require additional and sufficient supersedeas bond, to protect an appellee against loss, pending the appeal.

Barnes & Royall, of Silver City, and Mann & Nicholas, of Albuquerque, for appellants.

James G. Fitch, of Socorro, for appellee.

PARKER, J.

The plaintiff below, appellee here, has moved to dismiss the appeal for nonjoinder of necessary parties, both as appellants and appellees. It is pointed out in the motion that the transcript shows that two defendants and three other defendants, as copartners, appeared in the cause, and filed their answers, setting forth and claiming liens upon the mortgaged property, and were, by the findings and judgment of the district court from which this appeal is taken, adjudged and decreed to have liens upon the mortgaged property, two of them prior and superior to the rights of appellee, and one concurrent with him, and all superior to the other defendants; that said mortgaged property was decreed to be sold to satisfy their said liens, as well as the lien of appellee herein, and provided, of course, for the cutting off of the equity of redemption of the appellants and said other defendants; that two other of the defendants appeared and filed a joint answer with appellant in the court below, and thereby attempted to set up a common defense to appellee's complaint, and also alleged certain interests in said mortgaged property, and defended said suit jointly with appellant; and that the decree of foreclosure was equally against the last-named defendants and appellant; that still another defendant appeared in the suit in the lower court; and that the decree was equally against him and the appellant.

It appears from the foregoing brief statement of the contents of the motion, and from the record, that the main controversy was between the appellant and appellee on the question as to the amount due under the mortgage. Appellant claimed that only $57,000 of the par value of the bonds of appellant had ever been issued, and that $193,000 par value of said bonds was still the property of the appellant. The appellee claimed that the whole issue of $250,000 of the par value of said bonds had been issued. Upon this issue the court found with the appellee, and decreed a foreclosure, as before seen. Two of the defendants were adjudged to have prior liens to that of the mortgagee for certain specified amounts, and one of the defendants was adjudged to have a lien of equal rank with that of the mortgagee. Two others of the defendants claimed to own some portion of the property covered by the mortgage, and the court held against them in the decree. Another defendant made a similar claim and was likewise unsuccessful.

[1] 1. As to the three lien claimants who are not before the court, and who are not complaining of the decree, we can see no necessity to join them, either as appellants or appellees. An affirmance of the decree will leave them just where they now are, and a reversal of the same as to the appellant would not only not injure them, but would benefit them, in that, if the mortgage debt shall be reduced from $250,000 to $57,000, their liens will certainly be more surely secured by the property. Just such a case was before the Supreme Court of Oregon in Watson v. Noonday Mining Co., 37 Or. 287, 55 Pac. 867, 58 Pac. 36, 60 Pac. 994, and it was there held, where there are two lien claimants having separate liens upon the same property, that an appeal might be taken as to one of them without joining the other as a party to the proceeding.

In this connection it is to be noted that where parties have separate rights and interests, and unless joinder is essential to the jurisdiction of the appellate court, the nonjoinder of parties, either as appellants or plaintiffs in error, or as appellees, will generally have no further effect than to preclude any investigation or adjudication which will affect the rights of the parties not joined. 3 C. J. p. 1034, § 1017. We do not find that the joinder of the three lien claimants as appellees is necessary to the jurisdiction of this court upon this appeal. The provisions of our statutes (sections 4473-4476, Code 1915) contain no requirement to the effect that all parties to the proceeding in the court below shall be brought into this court in order that this court may acquire jurisdiction of the cause. The effect of an appeal by the defendant mortgagor without joining the three lien claimants is to preclude the mortgagor from presenting to this court any question concerning the rights of these lien claimants. The mortgagee over whose claim two of the lien claimants were declared to have superior liens, and one was declared to have a concurrent lien, is not in a position to question the decree, he having taken no cross-appeal. As between themselves, the three lien claimants will be assumed to be satisfied with the decree, because had any of them been dissatisfied, it would have been incumbent upon them to either join with the appellant or sue out a cross-appeal.

[2] 2. As to the three remaining defendants, a different proposition is presented. It appears from the answer that the defendant mortgagor sold and delivered to the W. H. McCrum Investment Company of Kansas City, Mo., at 65 per cent. of their par value, $193,000 of the first mortgage bonds, secured by the trust deed held by the plaintiff. This consumed the entire authorized issue. It is alleged that said sale was made in trust, subject to a condition, as a part of the consideration for said sale, that said investment company should market and sell the bonds of the Clear Creek Power Company in such time and manner as to raise enough money to pay off the entire bond issue of the defendant mortgagor; that it was a part of the contract that the defendant mortgagor should convey to the defendant the Clear Creek Power Company all of its power rights upon the water power which it owned, and that one R. T. Root was likewise to convey to said Clear Creek Power Company all of his water rights on the same stream; that such conveyance was made by the defendant mortgagor; that afterwards the defendant the Glendale Power Company was organized, having a capitalization of $650,000 and an authorized bond issue of the same amount, and took over all of the water rights, power plant, and pipe line thereunto appurtenant owned by the defendant mortgagor, as in said contract provided; that the defendant the Clear Creek Power Company acquired all of the water rights owned by one R. T. Root on the same stream, and did also authorize an issue of $650,000 of its first mortgage bonds; that all of said doings were with the knowledge and consent of the said W. H. McCrum Investment Company, and as a full compliance with the terms of said agreement; that the two power companies executed a deed of trust to the remaining defendant, Tyson S. Dines, as trustee, securing the payment of the said bond issue of the Glendale Power Company, by pledging all of the properties of the said two water companies, all with the knowledge and consent of all of ...