Elliott v. Ivers

6 Nev. 287

• Court: Nevada Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinion

By the Court,

WhitmáN, J.:

John O’Connell and Philip Splain commenced an action under the statute to foreclose a mechanics’ lien against William Ivers, joining Lewis Cook as party defendant having an interest in the property sought to be held. Issue was joined Oct. 4th, 1869. On the twentieth of the same month, the parties above designated as lien claimants filed petitions of intervention, Petty & Doane appearing in one and Elliott in the other. To the former, a general answer was filed ; to the latter, a demurrer: both on the second of November, 1869. It does not appear affirmatively from the transcript that this demurrer was ever disposed of, but no objection is made on that ground. On the eighteenth of March, 1870, the case was called for trial, when, in the matter of O’Connell and Splain, the following notice was given by their attorney: “ The clerk will enter dismissal in the above-entitled action, the same having been settled.” An order of dismissal was tbereon entered; whereupon the defendants objected to proceeding' with the matters of the petitioners, because the original suit had been dismissed, and because no notice to lien claimants had been filed. The objection was overruled, trial had, whereat, as is shown by the transcript, all the allegations of the petitioners were proven, and they had judgment and decree as prayed.

The first assignment of error is based upon the action of the Court, as just stated, in proceeding to try the issues between the petitioners and Ivers & Cook. The statute undoubtedly contemplates a formal suit, a publication of notice, an appearance upon the part of lien claimants other than'those commencing the suit, and a disposition of the entire matter of liens against the property affected, in one proceeding. Any person prejudiced by any error in the proceedings may undoubtedly object thereto. Do the appellants occupy such position ? The suit was regularly commenced. So far as appears by'the transcript, no notice was published; the statute does not require one to be filed, but its object was accomplished, and from the action of the Court, presumptively, all other lien claimants appeared. The manner of their appearance was more formal than requisite under the statutory provision; but the appellants could not be injured thereby, and the manner is certainly proper, though perhaps not necessary. (Mars v. Mackey, 14 Cal. 127.)

So soon as these parties had appeared, the Court had jurisdiction of the subject matter, the, parties and the whole thereof, and could not thereafter be divested of such jurisdiction by any action of the original plaintiffs. They had the right to retire from the contest, but they could not withdraw the subject matter so far as it concerned others who had become legally actors' thereabout; nor could they compel the withdrawal of parties not in privity with them or their individual claims. So the Court properly proceeded with the investigation of the case, and as has been said, was and is fully sustained in its findings and decree by the proofs. This disposes of the remaining assignments, which assert absence or failure of proof upon certain points as- against the evidence of the record. The judgment of the District Court is affirmed.