Carney v. La Crosse & Milwaukee Railroad

By the Court, Cole, J. The practice of appealing from orders of circuit or county courts which set aside, or refuse to set aside, judgments or sales under them, has obtained for years in this court, and must be considered as settled. If the practice is found to be wrong or inconvenient, the legislature can readily change it; but until this is done, appeals from such orders will be entertained. This is all we deem it necessary to say upon the question as to the appealability of this order. It is contended that the receiver of the railroad company, not being in any sense a party to the record, had no right to move to set aside and vacate the judgment entered, and sale had thereunder, in the court below. The conclusion at which we have arrived upon the merits of the motion, renders it unnecessary to pass upon the correctness of this position. For, assuming that he had a right to make that motion, we [508] are still of tbe opinion that the same was properly overruled, for reasons which we will now briefly state. It is claimed and insisted that the county court had no jurisdiction to render the judgment for a lien upon the premises, which was given in this cause. The particular objection is, that Hill & Rudd, the contractors of the company, were not made parties to the proceedings to enforce the lien. When the claim for a lien is filed by a sub-contractor or a person who has furnished materials for the building, it seems to be a wholesome and proper practice, to make the contract- or, as well as the owner of the building, a party to the suit. This will enable the court to settle and adjust all the accounts and equities between the parties, and give a lien upon the building for only so much as, upou investigation, the claimant may be entitled to. Now assuming that there was a defect of parties in consequence of the omission to make Hill & Rudd parties to the suit, it is very clear that the objection doesnotgoto the jurisdiction of the court. It was an error that the rail road company could take advantage of at a proper stage of the proceedings but it does not oust the court of jurisdiction. The court could still go on and give the material man a lien upon the building and the interest of the company therein, notwithstanding this defect of parties. The statute declares that where there is a defect of parties plaintiff or defendant, the objection must be taken either by demurrer or answer, or it shall be deemed to be waived. Sections 49, 52 and 53, Code; R. S. 1858, chap. 125, sections 5, 8 and 9. In support of the position that the court acquired no jurisdiction to render a judgment fora lien in this case, we were referred to Barker vs. Maxwell, 8 Watts, 478. That case by no means goes to this extent, as an examination of it will show. The case came up on error, and the court held that under the laws of Pennsylvania, the sub-contract- or should file his claim against the owner of the property and the builder or architect with whom he, contracted. The statute of that state is essentially different from our own, requiring this tobe done. See Purdon’s Digest, page 684. But while we deem this a very proper practice, even under our [509] statute, and one which, the rail road company might have insisted upon being followed, had the objection been taken yet it is not such an error as renders the judgment void for want of jurisdiction, or so irregular as to authorize a court to set it aside on motion. It will be borne in mind, that in this case the company was served with process, and answered. No objection was made, that there was a defect of parties. Now, after judgment has been rendered, and a sale had under it, to permit the receiver topcome in on motion and take advantage of this irregularity in the proceedings, would be a violation of all salutary and well settled legal principles. It -was also objected that the court did not find that the company was indebted to the respondent, or that he was entitled to judgment against it, but only that he was entitled to judgment generally and a lien on the premises. The court did find as matters of fact, that the respondent furnished Hill & Rudd, the contractors for building the company’s depot described in the complaint, a certain quantity of brick, and the price thereof; that the brick was used in the construction of said depot; that notice was given the company sufficient to entitle him to his lien; and that the company, at the time of giving the notice, was indebted to the contractors in a sum exceeding the value of the materials furnished. Judgment and lien were accordingly given in favor of the respondent, upon the building and premises mentioned in the complaint. We are unable to perceive any error or defect whatever in this judgment and finding. It is in strict conformity to the facts and law of the case as we understand them. Again it is insisted that the sale was unauthorized, not being in accordance with the judgment or order of the court. This objection is based upon these facts. It appears that after the judgment was rendered, the respondent remitted his lien upon such parts of the lots mentioned in the judgment as were not covered by tbe depot or necessary to its use. This was done upon an understanding with the attorney of the company, who agreed if the remitment was made, the sale might proceed as to the residue of the premises. It is now claimed that the remitment and agreement were void, or of [510] n° ^13013’ an(^ tkat consequently the sale made in furtherance of it was erroneous. We fail to perceive any satisfactory reaSon why the respondent could not waive his lien and judgment as to a part of the premises.' Who could possibly be injured by his doing so ? Certainly not the company, since the waiver was clearly for its advantage. It appears to us that this objection is not worthy of any further consideration. The order of the county court, refusing to vacate and set aside the judgment and sale, must be affirmed, with costs.