Atlantic Trust Co. v. Prescott

Wells, J. The first question for our decision is the motion of the defendants in error to dismiss the petition in error for the reason that Hattie I. Dennis, James H. Dennis, B. L. Vineyard and C. T. Harvin, defendants in the court below, have not been brought into this court. This is not merely a question of the marshaling Of liens. The issue raised is : Have defendants in error any lien upon the property in question? If they have alien for the amount claimed, it is undoubtedly superior to the lien of the plaintiff in error. In Stationery and Paper Co. v. Hentig (31 Kan. 322 ), the court says: “In no case should a judgment be interfered with by the supreme court where one of parties to the judgment is not a party in the supreme court.” In Loan Co. v. Lumber Co. (53 Kan. 677), it was held that, where “ it appears that a modification or reversal will affect a defendant who has not been made a party, the proceeding in error will be dismissed.” In that case, the plaintiff in error claimed, not only that its lien was prior to the lien of the defendant in error, but that the amount allowed the defendant in error against the owner of the land, who was not brought into the reviewing court, was too large ; and the case was dismissed for defect of parties. That case is very much like the-case at bar, the main difference being that the omitted defendant contested in the court below; but we do not think this is material. The motion to dismiss the petition in error for defect of parties, is sustained.