Shabanaw v. C. C. Thompson & Walkup Co.

OetoN, J. This is a consolidated action against Eood & Maxwell and the appellant, and to foreclose a lien on certain mill property for work and labor thereon. It is alleged in the complaints that the appellant has, or claims to have, some lien upon the premises, subject to the lien and claim of the plaintiffs. The case was referred to a referee to hear, try, and determine. The referee took and heard the testimony, and filed his findings of fact and conclusions of law in favor of the plaintiffs and respondent, who was made defendant, and reported the same to the court. On motion to confirm the report the court modified it so as to make a [623] part oí tbe respondent’s claim - a lien upon another mill on the said premises, called the “ old mill,” and judgment was rendered accordingly. The appellant moved to set aside the judgment on the ground that the clerk had no jurisdiction to enter it. This motion was denied, and the appellant has appealed from said order and from the judgment. This appellant has never appeared in the action, or filed any answer, or taken any exceptions to the findings and conclusions of law of the referee or to the modified findings of the court. It was made a party because it has, or claims to have, some lien on the premises, which is the usual averment for bringing in third, persons in order that they may set up their claims or liens, if any they have. But it has not, by answer or otherwise, disclosed any lien or claim, if any it has, upon the premises; and, so far as the record shows, it has no interest whatever in the subject matter of the suit, and no standing in court. It has neither excepted nor moved for a new trial. It cannot, therefore, be heard to question the findings or judgment. Riley v. Mitchell, 37 Wis. 612; Jenkins v. Esterly, 22 Wis. 128; Gilbank v. Stephenson, 30 Wis. 155. It cannot take advantage of exceptions taken by Rood & Maxwell, the real defendants in the action. 3 Wait, Pr. 204. It has neither excepted to nor appealed from the order modifying the report of the referee. Gilbank v. Stephenson, supra; Sayre v. Langton, 7 Wis. 214. But it is sufficient that it has not shown any right to intervene or question the judgment, or any interest in the subject matter of the suit. McGregor v. Pearson, 51 Wis. 122. By the Oowrt.— The appeal is dismissed.