Joliet Iron & Steel Co. v. C., C. & W. R. Co. , 51 Iowa 300 ( 1879 )

Rothrock, J.

1. equitable ÍSt¿i4ó°ntioneffect — That the averments of the original petition of intervention entitled Wallbaum, Bridges & Co. to intervene in the cannot be questioned. They claimed a judgment against the construction company, defendant, for a large sum of money, and the establishment of a mechanic’s lien prior and superior to that claimed by the plaintiff. Code, § 2683.

The question to be determined is, did they lose their standing as parties to the action by the subsequent decree of foreclosure and sale of the property, upon the receiver’s certificates, and the dismissal of all parties to the action except the construction company ? We think they did not. In their original petition they demanded judgment against the construction company. They demand judgment now. They are entitled to a trial unless the court has, in some way, lost jurisdiction of the subject-matter. How jurisdiction was lost we are not able to see. This was an equitable action. If it had been tried before any receiver’s certificates were issued, and upon the trial it had been found that the intervenors did not have a mechanic’s lien, but that they were entitled to a judgment against the construction company for the amount due them, it cannot be questioned but that such judgment should have been rendered. “Equity will not send a party from its bar, to begin a new suit, when it has jurisdiction of the persons and subject-matter concerned and can afford relief.” Young v. Tucker, 39 Iowa, 596.

The decree of foreclosure and sale disposed of all questions-in the case except the claim of the intervenors against the construction company. That remained as the sole question to be determined. The subject-matter and the parties were •before the court, and, it seems to us, there was no sufficient reason for sending the intervenors out of court to commence-a new action which would place the parties in precisely the same position they occupied previous to the dismissal.

Reversed.