Charvoz v. New State Bank

Opinion by

CROW, ■ C.

This action was commenced against Louis Charvoz, Sr., Mrs. Louis Charvoz, Louis Charvoz, Jr., Mrs. Louis Charvoz, Jr., and Cecil Charvoz, these' last two being one and the same person, in which action plaintiff sought to have a certain tract of land subjected to the payment of a certain judgment theretofore rendered in its favor in the county court of said county against all of- said ■ defendants. The plaintiff prayed also for cancellation of a certain deed executed by Louis Charvoz, Sr., to Cecil Charvoz, the sole plaintiff in error herein, but this relief was denied by the trial court, who, however, declared the land subject to the lien of the county court judgment, and ordered it sold for the satisfaction thereof. The only defense upon which any proof was offered was that said land was the homestead of Louis Charvoz, Sr., and family at the time the county court judgment was rendered. The court impaneled a jury and adopted its finding that the land was not the homestead of the defendants, but was subject to the lien of the county court judgment. In due time the defendant Cecil Charvoz filed her motion for new trial, which being • overruled, and exception saved thereto, she has perfected her appeal to this court.

The defendant in error has filed its motion to dismiss the appeal herein for the want of necessary parties. We formerly recommended that this motion be sustained, but upon further consideration of the case, and the consideration of additional authorities submitted, we are of the opinion that the parties defendant in the trial court, other than the plaintiff in error, are not necessary parties to said appeal. They asserted no claim to the land involved, and the record does not disclose any way in which the results. of this appeal could affect them; there being no personal judgment rendered. The judgment being purely in rem, it was not necessary to join in the appeal parties in the trial court who, the record conclusively shows, could have no interest in the land involved. We therefore recommend that our former opinion be withdrawn, and that the motion to dismiss the appeal be overruled.

In plaintiff in error’s brief she states that the sole error relied upon for reversal is that the judgment is not supported by the evidence. We have carefully examined the record of the testimony in the case, and find much compétent testimony in support of the judgment of the trial court. It is true that there was other evidence contradicting the same, but it is not within our province to pass upon the credibility of the witnesses. In this respect we must defer to the judgment of the trial court, who saw the witnesses and heard their testimony. There being competent evidence which tends to sustain the judgment of the trial court, it should not be disturbed here.

We recommend that the judgment of the district court of Woodward county be affirmed.

By the Court: It is so ordered.