STAPLES v. RYAN. (CIrcuit Court, D. Colorado. No. 3.019.
MEOHANICS' LIENS-SALE-VALIDITY.

July 30, 1894.)

In an action to enforce a mechanIc's llen on defendant's entire property, in which several interveners claimed liens against the same, and one claimed a lien against a portion only, a decree was entered fixing the amount due each claimant, and adjudging that each have a lien therefor against the property described in his complaint, and ordering the entire property to be sold to satisfy the liens. All the parties assented to the decree, and no motion was made to set aside the'sale thereunder. Held, that the sale was not void on the ground that by such sale the person claiming a lien against only a portion of the property shared in the proceeds from property of his complaint did not give the court jurisdiction.

On the 1st January, 1885, the Bassick Mining Oompany held title by United States patent to the Maine lode and mill site, the Triangle lode, the Spring lode, the Frank lode, tbe Georgia lode and Lookout mill site, the Nemeha lode, and the Lookout lode, situate in Custer county, Colo.
On the 1st of June, 1885, W. D. Schoolfield commenced suit in the district court of Custer county against the Bassick Mining Company and other defendants to enforce a mechanic's lien for work performed upon the lodes in "question. In this SUit, certain other lien claimants intervened, setting up various claims against the Bassick Mining Company. On June 15, 1885, referees were ordered to take testimony and report on all the lien claims against the which resulted in a decree adjudging to certain of the defend,ants sums according to their proved claims, and ordering the sheriff to sell so much of the property of the company as would pay the several judgments mentioned in the decree. The sheriff advertised all the property of the company for sale at public auction, and it was sold on July 11, 1885, and struck 'off and sold to Clapp Spooner for $37,599.85, and a certificate of sale issued to the buyer. On June 2, 1885, Vorreiter commenced suit by attachment against the Bassick Mining Company to recover $3,152. Upon this suit the plaintiff obtained judgment, which judgment was assigned to George H. \Vhite, who on January 16, 1886, caused execution to issue and levy to be made upon the property of the Bassick Mining Company, and on the same ,day paid to the sheriff the sum of $37,599.85 and costs, together with interest , thereon from J'uly 11, 1885, for the purpose of redeeming, as a judgment creditor, from the sale to Spooner, and then caused the property to be advertised for sale under this execution; but before the time appointed for the 'sale the Hendrie & Bolthoff Manufacturing Company instituted suit in the same court against the said George H. White and ,others to restrain and enjoin said sale. A temporary writ of injunction was granted, which injunction was afterwards dissolved, and the suit dismissed. On :May 13, 1886, sale was made under the 'Vhiteexecution and levy, and the sheriff duly sold the property, and '''hite bought it in for $60,000, paid the money to the sheriff, and received certificate of purchase from him. On May 14, 1886, James Staples, the plaintiff herein, was the assignee of a judgment duly obtained by Ratcliff Bros. against the Bassick Mining Company, and as a judgment creditor, and with the purpose of redeeming from the White sale, paid to the sheriff the sum of $UO,OlU.67, being the sum of the White purchase and interest to date, and thereupon caused the property of the company to be again lCYied upon and advertised for sale under the said execution. Afterwards. and before the time fixed for this last-mentioned sale. the Union Iron-Works Company, claiming to be. a judgment creditor of the Bassick Mining Com· pany. instituted suit in the district court of Custer county against George H. 'White, James Staples, the Bassick Mining Company, and the sheriff, seeking

636

FEDERAL REPORTEB,

vol. 62.

appeal taken to the supreme court, who granted a temporary injunction pending the appeal; and on. May 18, the supreme court affirmed the judgment of the district court, and dissolved the- said injunction. The Bassick Mining Company sued out a writ of error to the judgment rendered on June 19, 1885, in the Schoolfield SUit, to the" supreme court of Colorado, and on May 18, 1887, that court reversed the decree of the distrIct, court, and remanded the cause; and the sale which had .been enjoined in the Union IronWorks suit was proceeded With by the sheritr, who duly advertised, and sold to said Staples, as ll. ..'edemption creditor, and delivered to him his deed for the property. On May 27, 1,885, an attachment suit was commenced by Hendrie & Bolthotr, ManufacturiIlg Company against the Bassick Iv.llning Company, and ,on July 29, 1885, judgment was duly rendered in .favor of the defendant, issued to the sheritr, which was afterwards returned by him, showing the sale of Some personal property, but not enough to satisfy the judgp;lent, a transCl'ipt of which judgment was duly re!lorded in the county. "On May 9, 1886,1;Pis Hendrie Bolthotr duly assigned to Dennis Ryan and Frank G. Brown, a second execution issued, and returned nulla bona; and on May 26, 1887, a third execution issued, and was duly leviea, on 31st all the property above described as belonging to the Bassick Mining Company. On 3d A.ugust, 1887, the property of the Basslck Mining Company was sold under the execution levied upon the 31st May, 1881, and bought in by Dennis Ryan for $6,700, and this sum was paid to the sheritr, and he issued his certificate of sale on 3d August, 1887, and on 9th September, 1892, his deed, to said Ryan.

to restrain the said lilllle, and for wrIt of injunction, which was denied, and

Hugh Butler, for plaintiff. Thomas, Bryant & Lee, for HALLETT, District JUdge. June 1, 1885, W. D. Schoolfield brought suit ,in the district court of Custer county, Colo., against the Bassick Mining Company and others, to enforce a mechanic's lien on certain mining claims situate in that county, and owned by the said company. Several other lien claimants appeared in the suit, and asserted liens upon the same property for various amounts. One, Thomas Armstrong by name, appeared and asserted a lien for a considerable sum against one of the lode claims only, described in the bill, and called the ''Maine Lode." The cause was referred, to enable the several lien claimants to prove up the amount of their l'espective claims, and all parties, including the principal respondent, the Bassick Mining Company, appeared before the ref.eree. In due time, June 19, 1885, adecree was entered fixing the amount dne to each of the claimants, and declaring that each should have a lien upon the property described in his complaint for the sum adjudged to him. In this way, and by the recital that the parties, respectively, should have alien upon the property described in their complaints, all except Armstrong secured a lien upon all of the property mentioned in the bill, and Armstrong's lien attached to the Maine lode only. The court further decreed that all of the property should be sold by the sheriff of the county to satisfy these liens, and the property :was described at length in the decree. The decree seems to have been entered with the assent of all parties, including the Bassick Mining Company, and this applies to the order of sale as fully as to other parts of the decree. No motion was made in the district court at any time to modify or change the decree in any particular; and in the month of July following a sale was made by the sheriff, pursuant to the decree, for a sum suffi-

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637

cient to satisfy all the claimants, including Armstrong, and they were accordingly paid in full. Upon this statement of facts, it seems clear that the district court of Custer county, under the Schoolfield bill, acquired full jurisdiction of the property described in it, and of all parties to the suit; and that the decree of June 19th, and the sale subsequently made pursuant to its terms, were entirely within the power of the court. The jurisdiction of the court over the property described in the bill did not stand upon the Armstrong petition. Armstrong was an intervener claiming a lien as against one lode described in the bill, and his position in the case could not affect the original complainant, or the jurisdiction of the court upon the original bill. Whether his claim should be allowed or not, the court had the same authority to proceed against the property for satisfying the complainant's demand and the demands of other claimants against the whole property. . It may be conceded that Armstrong was entitled to have the property on which he claimed a lien sold in a manner to satisfy his claim, as well as that of the other claimants in the suit; but he did not ask to have it sold in any particular way, nor did he raise any objection to the sale after it was made. As before stated, all parties assented to the decree, and, no motion having been made to set aside the sale, it is fair to assume that all parties also assented to the sale. If the Bassick Mining Company desired to have the sale made in any particular manner, it should have asked the court for an order in that behalf. And so, also, as to Armstrong and all other parties to the suit If the sale, when made, was not acceptable to the Bassick Mining Company or to Armstrong, or to any other of the claimants, application should have been made to the district court to set it aside. Since all the property was subject to sale for satisfying the several claims in one way or another, the Bassick Mining Company could only ask that it should be sold in a manner to bring the most money; and it has not been claimed, nor does it appear, that the sale was made at a sacrifice, when considered with reference to the value of the property. Upon this, it is impossible to say that the sale was void; and, but for the emphatic declaration of the supreme court to that effect, the question would hardly be worthy of discussion. Mining Co. v. Schoolfield, 10 Colo. 46, 14 Pac. 65. It is believed, however, that the supreme court did not intend to set aside the title acquired by Spooner at the July sale, notwithstanding the statement that it was made without authority. The concluding paragraph of the opinion gives the district court authority to make such order as may be necessary to protect the rights of lien claimants and the purchaser at the sale; and this undoubtedly conferred upon the district court authority to confirm the sale when it should appear that all parties were satisfied, excepting the Bassick Mining Company, and that it had no just ground of complaint. Several sales were made conformably to the statute, at the instance of redeeming creditors, following the July sale to Spooner; and it is believed that the title acquired by Spooner was, by these sales, transmitted to the plaintiff in this suit. Upon a cursory examination of the opinion of

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vol. 62.

'reported in lOCOIO.jand 14 P'40."ih:aMther; oase, heard in November, 1887, I was led to belie\'e ilihil't:r:theefl'ect of that decisIon sales made uooet the Sehoolfield decree. examination'l)f'tne subject, I am satisfied that 'the then expressed was wroIlg; The sale under the School· field but it waS"Dot -void: Concerning JlPon ,which'defendant relies, it cannot be necessary to .· , ,The proceedings in assessment and' sale ,ar¢'so far irregular that 'the title cannot be 'of'the opinion that judgmellt should go for the ,
'the

al. v. MARX et at (Circuit Court of Appeals, FifthClrcult. May 8, 1894.) , I No. 199.
,RES JUDICA'J'A:r-i-'REVERSAL IN PART ON ApPEAL-ACCOUNTING BY ADMINISTllA· TOJ.t., ,

A plea sett!ng up, In bat;, of a suit for an accoupting by an admlnls· tratot, judgments of a county probate court approving his accounts filed In' that court cannot be sustained on ,evidence, showing that, on ap· peallil. duly, prosecuted from said judgments to a district court, judgment was renqered·disapproving and disallowing the accounts, and sll-staining the objections tlwreto except as to commissions allowed.

Appeal fpo.;. the .ern Districtof Texas.:

United States for the East·

The appellants, MinnIe M,Appleton, and T.J. Appleton, her husband, citidl,ens of the state of Michigan, claiming to sue in the right of the said Minnie M. Appleton, ap4 .as nextft:lends of James M. Strong, an infant, filed a bill In the circuit C01ll't of the United States for the eastern district of Texas . against Joseph Mal'x; L. C. De Morse, and others, citizeliS of Bowie county, :tn the state of Texas, and. Max ,'Munzesheimer, S. COl.'y, and'F. M. Duncan, !·nonresidents- Of, tb.e state, of Texas. The bill charges, in substance, that in November, 1884, James f:;trongdie,q. intestate in the state of Michigap, surviving the said Minnie M; Appletpn (then Minnie M. Strong), his wife and Widow, and the said James M. Strong, his only child and heir at law, then , an infant two years old; that on May' 7, 1885, the defendant Joseph. Marx was duly temporal'yadministrator of the estate of said James Strong, deceaseq.,1;Iy the county court of Bowie. county, 'Tex.; that on the Same day the sai<1defendantJoseph Marl\: gave bond as telllPorary administrator in the sum 'of $50,000, with all' the other defendants as sureties on said bond, which' bond was duly received, approved, and filed; that on the same day the said. Joseph Marx ,qualified as said temp,oraryadministrator. ,and entered upon tlle duties thereof: that on the 20th day of June,' 1885, the , said Joseph Marx filed in the county court of Bowie county an inventory and appraisement of ,the estate of said James Strong, deceased, in which he '., showed numerous claims due and owing to said estate, secured by mortgage and other liens,.recapitulating the same; that on June 9, 1885, and on Jan· nary 27, .1886, and January 25, 1887, the said Joseph Marx, as temporary administrator,collectedcertain. amounting to. about $19,500, belonging to the estate. of James Strong, deceased. That on October 1, 1884, the saId James;' "Strong, then living, placed in the hands of the said Jo· e seph Marx a.promissory' nute against,the firm of Frost & Ferguson, in Mil· leI' county, Ark., :for$850,wbich note belonged to said ·Strong, and was placed in the hapds of ;Marx for collection; that on .January 1, 1885, the said Marx collected the said note, with $50 Interest due thereon, which said sum of money was assets iin the hunds of saId Marx when he was appointed as tem·