Lowber v. Childs , 2 E.D. Smith 577 ( 1855 )

Woodruff, J.

The opinions given by this court in Sullivan a. Decker, (1 E. D. Smith, 599), do not warrant the judgment rendered in the Marine Court in this action; and the decision in Foster a. Skidmore (Ib., 719) is, so far as this court is concerned, conclusive that such judgment was erroneous. The plaintiff had taken the very steps which the statute prescribed, and the court thereby obtained jurisdiction of the matter and should have proceeded therein.

I do not discover any defect of power in the.Marine Court to make any order which may be essential to carry into full execution the jurisdiction which the statute itself has conferred upon them, by authorizing the proceedings to be had in that court; and in this respect it is not material whether the foreclosure be deemed a strictly legal or an equitable proceeding. Besides, section 64, subdivision 15, of the Code of procedure, makes the provisions of the code, respecting parties to actions, applicable to the justice’s courts, and section 68 in like manner, makes section 64 apply to the Marine Court. Section 121 of the Code, in terms provides that when a complete detez-mination of the controversy cannot be had without the presence of other parties the court must cause them to be brought in. It seems to me that in this the Marine Court have ample power to cause a contractor to be summoned, and that it should have been done. But further, it appears by the notice to bring the lien to a close, that the contractor was made a party defendant, and if one defendant only had been served, still the proceedings should not have been dismissed,—the defendant might have been brought in, as in cases where only one of two defendants is served.

The judgment must be reversed.