German National Bank v. Elwood

Mr. Justice Elliott

delivered the opinion of the court.

The assignments of error are in effect as follows:

1. That the district court had no jurisdiction whatever *246 over the Warrior’s Mark Mining Company or over its property, and had no jurisdiction to render any judgment or decree in the action against said company, for the reason that said company was not a party to the action.

2. That the district court had no right or authority to adjudge or decree the liens of plaintiff to be prior or superior to the lien of the defendant bank.

The cause was referred for trial to a referee, who reported findings and judgment to the court. The final decree as rendered by the court and signed by the judge shows that no objections or exceptions were taken by either pa/ri/y to the report of the referee or to the filing or approval thereof by the court.

It does not appear that any attempt was made to preserve any objection or exception in the court below at any stage of the proceedings until the next day after final judgment was rendered. Then, for the first time, a recital appears in the minutes made by the clerk to the effect that the attorney for defendant comes and “ excepts to the entering. and filing of the judgment and decree heretofore entered •herein.” It is scarcely necessary to say that such recital in the clerk’s minutes is not sufficient to preserve an exception to the final judgment. It is well settled that exceptions to the rulings and decisions of the court cannot be thus preserved for review upon error or appeal. Exceptions can be preserved for such purpose only by a bill of - exceptions duly signed and sealed by the presiding judge. See Rutter v. Shumway, ante, p. 95, and cases there cited. The court gave defendant ninety days in which to prepare and tender a bill of exceptions; but no such bill has been certified to this court.

If objection had been taken in the court below on the ground that the Warrior’s Mark Mining Company was not made a party, or on the ground that the complaint did not allege with sufficient certainty the transfer of said company’s property to the receiver, these alleged defects might have been remedied. It is true, the allegations in respect *247 to such transfer are not very specific; they are perhaps inaccurate and defective in form, but they are in no way controverted by the answer of either defendant, and it cannot properly be said that the defects alleged are jurisdictional, or of such a nature as to require a reversal of the judgment upon an objection made for the first time in this court. Bliss on Code Pleadings, secs. 435-438.

The court from which this record comes is one of general and unlimited original jurisdiction as to all causes at law and in equity. Its records and judgments are presumed to be regular and free from all jurisdictional defects as well as other errors, unless the contrary clearly appears.

The general rule undoubtedly is, that the owner of the property upon which miners’ or. mechanics’ liens are sought to be foreclosed shall be made a party to the foreclosure proceedings. If, however, the property and the title thereto have been regularly transferred to a third person for the purpose of being disposed of to pay incumbrances against the same or to pay debts against the owner, we are not prepared to say that it may not be sufficient to make such third person a party to the foreclosure proceedings instead of the original owner. In this case, however, we do not decide that the rights of the Warrior’s Mark Company, or the rights of the bank or of Elwood as against said company, are necessarily concluded by this proceeding. The Warrior’s Mark Company is not here complaining. The plaintiff in error was summoned and appeared as a party to the action. It made no objection on the ground of a defect of parties. It made no objection to the form or substance of the pleadings nor .to the amount or character of the proof. It took no exception to the finding or judgment reported by the referee, nor to the final decree of the court. It will be presumed, therefore, for the purposes of this review, that sufficient was made to appear before the trial court to justify its findings and decree, so far as the parties to this record are concerned. Bliss on Code Pleadings, sivpra.

*248 Our conclusion upon this point in no way conflicts with the previous decisions of this court as cited by counsel. The Deolcer-Myles Case, 4 Colo. 566 , in which it was said that the defendants proper in proceedings to foreclose miners’ and 'mechanics’ liens m*e the owners of the property sought to be charged, was an original action growing out of a previous foreclosure suit. The question involved was in no way analogous to the one at bar. The San Juan-Finch Case, 6 Colo. 214 , was also an original action brought to restrain the execution of a judgment rendered against the San Juan Company without service of process upon said company. The Snodgrass-Holland Case, 6 Colo. 596 , was a suit to enforce a miner’s lien against a mine owned in fee by Snodgrass and one Warwick as tenants in common; that the contract under which the lien was claimed was made by the authority and sanction of Warwick does not appear to have been disputed. Snodgrass moved in the court below that his co-tenant Warwick be made a co-defendant; and for the refusal of the court to grant this motion the judgment was reversed.

It is not intimated by this opinion that the Warrior’s Mark Company might not by an original suit obtain relief against the judgment now under review; nor is it decided that if plaintiff in error had moved in the court below to make the Warrior’s Mark Company 'a co-defendant that it would not have been error to have refused the motion. Plaintiff in error knew, when this cause was pending below, or had the means of knowing then as well as now, the necessity of making the Warrior’s Mark Company a co-defendant, if such necessity there was. A party cannot ordinarily resort to an appellate court to obtain relief from his own mistakes or omissions in the lower court. Such is not the usual office of the .writ of error.

The transcript in the case of Denison et al. v. The Warrior’s Mark Mining Company, filed in this proceeding, cannot be regarded in any sense as a supplemental transcript in this case. It does not appear ever to have been made a part of this proceeding in the court below. Perhaps-if it *249 had been introduced in evidence on the trial below it might have had some bearing on the case. But this review must be prosecuted on the record, and not upon ex parte matters introduced afterwards. Luthe v. Luthe, 12 Colo. 429 .

As to the right and authority of the court to determine the priority of the liens claimed by the plaintiff for himself and his assignors and the defendant bank respectively, there can be no doubt. The bank by its answer joined issue with plaintiff and asked to have its lien by attachment adjudged to be prior to any lien claimed by plaintiff. It had full opportunity to be heard by evidence and by its counsel. If it had succeeded in establishing the priority of its lien by a decree of the court, it might have proceeded to sell the property by virtue of its levy discharged of plaintiff’s liens, and thus would have gained all it desired in the litigation. In case of success, there was no necessity on its part .to make the mining company a party to the litigation, inasmuch as the only issue material to its interests and the only parties necessary to an adjudication of its claims were before the court. Surely, it cannot now be successfully urged as a ground of error in behalf of the bank that it did not anticipate defeat, and so did not take the steps necessary for the protection of its interests in such a contingency. The issue as joined between the parties was found and adjudged in favor of plaintiff, and nothing whatever, either of law or of fact, is shown in the record against the correctness of such finding and adjudication. Certainly, no reason appears why the adjudication of the controversy in respect to the priority of the respective liens should not be regarded as final between the parties to the record. Phillips on Mechanics’ Liens, sec. 395.

The judgment of the district court is affirmed without prejudice to the defendant bank as a lien claimant junior to plaintiff in respect to the liens adjudged against the property known and described in the record as the property of the Warrior’s Mark Mining Company.

Affirmed.