Ocheltree v. Hill ( 1889 )

Granger, J.

If parties shall think that this cause has been considered without a proper understanding of the facts, they must understand that is because of the confused and unsatisfactory condition of the record. With more than usual pains to understand it, we approach the consideration with’ many doubts. There seem to be two cases, bearing numbers as 2,443 and 2,505. While these numbers are often used in the pleadings and orders of the court and the records in the different cases as set out, the cases are nowhere identified by number in the record, and the relations of the different proceedings are in doubt. In one of the pleadings no less than four exhibits are referred to, and papers are appended, but without designation as an exhibit, and in regard to some we may be mistaken. The final order seems to have been made on the same day in the two cases as numbered, and the appeal seems to be from both orders. As we understand the partition case, — being the one entitled first above, — it is number-2,443, and number 2,505 is a suit of Margaret Oeheltree and William Hill to enjoin the referees from making the sale of the premises under the order of the court made in number 2,443. The appeal presents a question in each of the cases for us to consider.

I. Appellant claims that the court erred in not recognizing his claim for the life-estate of Margaret Oeheltree. The ground upon which the court refused the claim in this case is that the equities of his claim had been settled in case number 2,443. To an understanding of the adjudications, and how they affect the appellant, it will be necessary to know who were parties to be affected by the issues tried at the different stages of the proceedings. In the proceeding for partition,— number 2,443, — after notice and filing of the petition, the plaintiff,' Margaret Oeheltree, dismissed the proceeding by a writing to that effect filed in the cause. The order of the court, affirming the shares, and for partition, was m'ade after this dismissal, and we think it important to enquire if the order in any manner affects her or her assignee. It seems to have been the view of the court that she could not dismiss the. action, even as to herself, so as not to be bound afterwards by the proceedings. At least we infer this from the orders made after the attempted dismissal. That she could not dismiss the action as to her co-plaintiff may be conceded, but as to herself we think she may do so, and that such was the legal effect of the dismissal filed. Code, section 2844, provides that an action may be dismissed by the plaintiff before the final submission of the cause to the jury or to the court. There is no express provision for a dismissal by one of two or more plaintiffs, but there is nothing in the letter or spirit of the law to require a co-plaintiff to remain and prosecute a cause when in his judgment neither the right nor his interest requires him to do so; and, although he may not be able to dismiss the action, he may do so as to himself. If parties to the action desire his presence in court for the further prosecution of the action, the provisions of the Code are ample to secure his presence by making him a compulsory party. Code, secs. 2547, 2551. With this holding, Margaret Ocheltree was not a party to this proceeding when the order for partition was made, and is in no manner bound thereby. Prom the time of filing her dismissal, she made known to the court fully that she had sold her interest in the premises, and had no rights there to' be determined by the court. When she withdrew from the action, no pleading or claim of any kind had been filed presenting an issue against her, and before her rights could be affected she must in some manner have been interpleaded. If she was in no manner affected by the order of the court, her assignee would not be, merely by virtue of the assignment. If, then, Hill is affected by the judgments of the court, it must be in consequence of his intervention.

It is, however, urged that the remedy by appeal is lost, the order for partition having been made in August, 1884. We have held that at the time of such order Margaret Ocheltree was not a party, and the order could have no application to her, and at that time Hill was not a party. Hill became a party by intervention, September 1, 1884, and asked the dismissal of the cause on the ground of his having purchased the life-estate of Margaret Ocheltree. No ruling appears on this application, and on the nineteenth of September the court modified its order as shown in the above statement of the case. October 22, Hill filed his supplemental petition, which was answered by the plaintiff, William Ocheltree. This issue presents the question of the life-estate claimed by the intervenor, and on this issue the court holds that it “finds that said William Hill and others have in the disposition of number 2,443 received all the equitable relief to which they are entitled.” In number 2,443 we have held that Margaret Ocheltree dismissed the action as to herself, and as to the intervenor Hill the record nowhere shows any issue or decision on that question, unless it be the order set out in the statement of facts above. Hill’s relation to the case at that time was that of' an intervenor merely, asking a dismissal on the ground of having purchased the life-estate. His application was not answered, nor was any issue whatever taken as to his rights. In his application he claimed nothing adverse to either party, nor did either party seek an adjudication against him. There was no record on which a judgment could be based against him. We think the court erred in finding that the question of the life-estate of intervenor had been adjudicated. With the condition of this record we are not inclined to decide as to the validity of the life-estate. We think the case should be remanded to the district court, with instructions to retry the cause on the application for partition, unaffected by questions of prior adjudications in any of the proceedings now before us; giving full opportunity to amend the pleadings, and make new parties, to the end that the legal and equitable interests of .all the parties may be fully' attained, and it is so ordered. Reversed.