Ottumwa Boiler Works v. M. J. O'Meara & Son

Faville, J. I. The National Bank of Bloomfield has filed in this court a motion for a decree, to which objections and a resistance have been filed, and certain amendments to the tendered decree have been proposed. A brief review of the situation presented is necessary. O’Meara & Son were contractors for the construction of certain drainage districts. The Southern Surety Company was surety on the bond of said contractors. O’Meara & Son failed in performing their contracts, and the work was taken over by the Southern Surety Company and completed. On August 4, 1924, the Ottumwa Boiler Works filed a petition at law, claiming that O’Meara & Son were indebted to them, and praying for a writ of attachment.- On September 19, 1924, the National Bank of Bloomfield commenced a similar action against O’Meara & Son. On September 20, 1924, the Hercules Manufacturing Company filed a similar petition. Numerous claimants filed claims with the county auditor of Davis County against the fund due to the contractors, but did not institute suit. On May 28, 1925, the Ottumwa Boiler Works filed, in the action commenced by it, a motion to transfer the cause-to equity and to interplead the claimants. The said motion alleged: “That the National Bank of Bloomfield, the London Guarantee and Accident Co., Ltd., Cooper & Son, Hercules Mfg. Co., and C. O. Neice, have all filed suits of attachment in the district court, claiming the funds or a portion thereof in the hands of Davis County, Iowa, or the Wycondah and Fox River Drainage Districts. That said suits are pending at this time in this court, and are similar actions to the above entitled cause; and before it *82 can be determined who is entitled to priority as to said funds, it will be necessary to consider all of said claims. ‘ ‘ That there are several attachment suits filed in the justice court, and that judgment has been rendered therein against M. J. O’Meara & Son; but from the nature of this fund, because of numerous claims filed by attachment and claims filed against this fund as claims for labor and material, it was impossible to determine the priority of said claims without having all of said claimants in court. “That there are a large number of claimants that have filed claims against the final estimate of the said contractors, M. J. O’Meara & Son, and against the said contractors’ bond, as by statute provided in the case of public improvements, and that, because of that fact, it will be necessary to consider said claims, to determine the priority of the same, before the funds in the hands of the county or drainage board can safely be distributed to any of the defendants or any of said claimants with safety. & % % “That all of said claimants are proper parties and necessary parties, as hereinbefore set forth, and that the consolidation of said claims will greatly expedite matters in the furtherance of justice, and will avoid a multiplicity of suits. “That this plaintiff; is entitled to an order of this court to transfer said cause to equity and interplead said above mentioned claimants and prescribing the time of their appearance and notice to be served thereon. ’ ’ On May 28, 1925, the court made an order in said matter, as follows: “Be it remembered that, on this the 28th day of May, 1925, it being the 22nd judicial day of the May term of the district court of Davis County, Iowa, the plaintiff appearing in open court by their attorney, Yerne J. Schlegel, and having filed their motion for the transfer of the above-entitled cause to the equity docket for trial and appearances, and the court being fully advised in the premises, it is ordered that Law No. 6758, Law No. 6780, Law No. 6795, Law No. 6796, Law No. 6797, Law. 'No. 6798, and Law No. 6809, are consolidated and transferred to the equity docket for trial and determination. “It is further ordered by the court that all parties interested *83 be made parties to this action, and actions as hereinbefore ordered consolidated, and that they be notified to appear and plead in said consolidated canse and action on or before the second day of the October term, 1925, of the Davis County district court, said court convening on October 5th, 1925. And the following named parties are hereby ordered to appear and plead in said cause on or before said date. It is further ordered by the court that the original notice be served, as provided by statute, upon the following named corporations, partnerships, and parties having claims against Wycondah District No. 1 and Fox River Drainage District No. 3, to wit: ’ ’ A list of some thirty-two claimants was named. The various claimants appeared in said action, and set up their respective claims, and extensive and voluminous pleadings were had. The contractors likewise appeared. On May 3, 1926, the court rendered findings and a decree. The said findings and decree contain the following recital : “It was agreed in open court by and between all of the parties above named that said causes were to be submitted to be determined in vacation, and decree entered in vacation with the same force and effect as if entered in term time. All of the other causes and parties which were originally consolidated with these causes and which are not named above were dismissed or withdrawn, as shown by pleadings in this cause, and were not considered by the court. ’ ’ The court then proceeds to make a finding as to various claims, and holds that certain claims were lienable and certain other claims were not lienable. Respecting the claims of the Southern Surety Company and the National Bank of Bloomfield under certain assignments, the court held that the assignment to the National Bank of Bloomfield was prior and superior to the assignment to the Southern Surety Company. The court established certain claims against the contractors and the Southern Surety Company. As to certain claims, the court decreed that judgment be rendered therefor in favor of the claimants and against the contractors, and decreed that each of said judgments and sums be established as a lien against the fund in the hands of the auditor. The court also ordered and decreed that the *84 claim of the National Bank of Bloomfield, be established as a lien upon the funds in the hands of the auditor; and it was decreed that, after payment of judgment and costs, the balance was to be credited on the judgment in favor of the Southern Surety Company and against O ’Meara. The Southern Surety Company alone appealed to this court, all of the parties being served with notice of said appeal. The various claimants appeared in this court and submitted arguments. The cause was determined in this court by opinion rendered April 3, 1928, and reported in 206 Iowa 577. We held that the assignment of the Southern Surety Company was superior to the assignment to the National Bank of Bloomfield. The first error relied upon for reversal, as urged by, the Southern Surety Company, involved the question of the lien-ability of certain claims that had been established as liens by the trial court. These were the claims of J. T. Tunnell, Centerville Foundry & Manufacturing Company, Ottumwa Boiler Works, Ottumwa Box Car Loader Company, Ottumwa Iron Works, J. Rosenbaum & Son, Minnie Toombs, administratrix, and Hercules Manufacturing Company. The lienability of these claims was exhaustively argued in this court by the several claimants. We held that each of said claims was not lienable. One important question presented on this motion for a decree arises between the above-named claimants and the National Bank of Bloomfield. In brief, these claimants contend that their claims were established as liens against the drainage funds in the court below, and, being so established, they were necessarily ahead of the assignment of the funds to the National Bank of Bloomfield. Their contention is that, even though we have held said claims not to be lienable on this appeal as against the Southern Surety Company, the question is only determined here as between said claimants and the appellant Southern Surety Company, and that their position and standing as lienable claimants as against the National Bank of Bloomfield have not been affected by the appeal. In other words, the said claimants contend that, while their claims may not be lienable as a matter of law, under our holding, as against the Southern Surety Company, which appealed, yet they have not lost their status as being lienable so far as the National Bank of Bloomfield is concerned, because it has not appealed. The trial court decreed that the National Bank *85 of Bloomfield had a valid assignment of the fund, subject to lienable claims. The Southern Surety Company contended that it had an assignment of the fund superior to the assignment to the National Bank of Bloomfield, and subject only to claims properly lienable. When the Southern Surety Company appealed, it not only raised the question of its claimed superiority to the assignment of the National. Bank of Bloomfield, but also contended that said claims were not lienable, and hence were inferior to its assignment. This contention we sustained as to certain claims which had been established as lienable by the court below. How does the matter then stand, as between the claimants whose claims we thus held are not lienable and the National Bank of Bloomfield under its assignment! The National Bank of Bloomfield did not appeal. It contends that the decree of the trial court was favorable to it, and hence there was nothing from which it could appeal. True, the trial court established the claim of the National Bank of Bloomfield as superior to that of the Southern Surety Company, but nevertheless it was subject to the lienable claims as established by the decree of the trial court. The National Bank of Bloom-field could have appealed from so much of the decree as- established certain claims as lienable, and hence-superior to its assignment. Since it has not done so, can we, on this appeal by the' Southern Surety Company, hold said claims not to be superior to the assignment of the National Bank of Bloomfield also!- The-National Bank of Bloomfield might have admitted of record that, a certain claim was lienable. This would establish its status as to said bank, but not as to the Southern Surety Company, .which was contesting its lienability. It is strenuously urged that, the appeal being in equity, the entire case is here for disposal de novo, and that we not only can.,, but should, determine the rights of all parties, regardless of which party took the appeal. The National Bank of Bloomfield contends that, on this appeal, we are in a position to correct all errors, and therefore can determine, as between it and the several claimants, the question' of lienability of said claims. State v. Consolidated Ind. Sch. Dist., 188 Iowa 959, does not lay down any such rule. We therein said-: *86 “The successful party may, without appealing or assigning errors, save the judgment by showing that errors were committed against him below which, if corrected, will make the result reached below a right result. ’ ’ It is obvious that this rule would not avail the National Bank of Bloomfield in the instant case. It is now contending that the ruling of the court below as to said claims was erroneous, and is not seeking to show errors committed below against it which, if corrected, will make the result reached below a right result. In order to correct the errors against the National Bank of Bloomfield that were committed by the trial court, we would have to change entirely the result that was reached below. This is not a case where error against an appellee is shown to be harmless because of an error committed against the appellant which, in a certain sense, offsets it, as in Vorhees v. Arnold, 108 Iowa 77; Kelso v. Wright, 110 Iowa 560; and Ford v. Dilley, 174 Iowa 243. In Smith v. Knight, 88 Iowa 257, at 279, we said : “But in this connection it is urged that this finding against the appellees cannot be considered, because they have not appealed ; the thought being that only matters of complaint by the appellant are involved in the trial on appeal. On the other hand, it is contended by the appellees that the whole case is for trial anew, and that such judgment should be entered as the law and the facts ■pull warrant. Neither position, in our judgment, is correct. The appellees attach importance to the fact that in equity causes the trial is anew, and contend that it should be a trial of the whole case. On appeal in equity causes, the trial is of the whole cause, in so far as the appellate court is involved, but its province is not to reverse or modify judgments in favor of parties who are content with the judgment below, which fact is assumed, in the absence of complaint by the party, and the legal mode of complaint is by appeal.' Such a rule works no hardship, and we think it is a consistent rule of practice. Hintrager v. Hennessy, 46 Iowa 600; Devoe v. Hall, 60 Iowa 749; Frost v. Parker, 65 Iowa 178; and Huff v. Olmstead, 67 Iowa 598, are equity eases in which the rule has been announced, and the Reports contain other cases of both forms of action announcing the same rule. *87 This appeal was taken, in the light of these holdings, and they must be held as conclusive of the question. ’ ’ See, also, Boatwright v. American Life Ins. Co., 191 Iowa 253. We reach the conclusion that the National Bank of Bloomfield, not having appealed, is not entitled in this court to a decree more favorable than that which it obtained in the court below; or, in other words, as to said National Bank of Bloomfield, the trial court having established certain claims as being lienable, and therefore superior to the claim of the said National Bank of Bloomfield, and said decree not having been appealed from by said bank, we cannot, as between said parties, adjudicate the question of the lien ability of said claims; and the decree as to said matters, as between said parties, must stand as in the trial court. II. The appellant, by objections to the proposed decree, now insists that it is entitled to claim the item of $2,292.11 known as the Power-Penn Oil Company claim, and the item of $480 known as the Monighan Machine Company claim. Both of these items are considered in the original opinion, and the decree must conform to the pronouncement therein made. III. The costs in the trial court were taxed one half against the Southern Surety Company and one half against the contractors O’Meara & Son. The decree of the trial court in this respect will remain unchanged. The costs in this court will be assessed one third thereof to the Southern Surety Company, one third thereof to the National Bank of Bloomfield, and one third thereof to Ottumwa Iron Works, Ottumwa Boiler Works, Ottumwa Box Car Loader Company, Centerville Foundry & Manufacturing Company, Rosenbaum & Son, Hercules Manufacturing Company, Minnie Toombs, administratrix, J. T. Tunnell, New-ton & Lang Motor Company, W. C. Swift, C. M. Buckles, and Dr. A. M. McPhail, claimants, in the amount that the claim allowed to each of said claimants bears to the amount of one third of the costs in this court. The motion for a decree is overruled, with leave to any party to this appeal to present a decree in accordance with this opin ion. — Motion overruled. *88 Albert, C. J., and Stevens, De Gbaee, Kindig, and Wagner, JJ.-, concur. Morling and Evans, JJ., dissent.