Practice — Creditor Not Joining in Creditors' Bill — Independent Action — Estoppel.
Where, during the pendency of a creditors' bill, a claimant having two separate debts against the debtors, one an unsecured account and the other secured by mortgage, declined to participate as a party plaintiff, and was not made a party defendant, but asked and was allowed to interplead as to the unsecured account, and, upon the appointment of receivers of the debtors, obtained leave of court to bring and did bring an independent action upon the mortgage debt, and the court twice refused motions of the defendant to consolidate such action with the pending creditors' bill: Held, that the plaintiff is not estopped to maintain the independent action upon the mortgage debt by the judgment rendered in the creditors' bill, which did not purport to pass upon such claim.
CLARK, J.
The plaintiff held two claims against the defendant, one for an open, unsecured account of $92, the other for $2,573, secured by mortgage. In the creditors' bill, brought by Delafield and others against the defendant, the Snow Steam Pump Co. was not a plaintiff, nor was it made a defendant by service of summons, nor by general appearance either in the action or before the referee. Indeed, the Snow Pump Co., when summoned before the referee, refused to take any part, and, appearing specially, excepted, so there was no ground to hold that the Snow Pump Co. was a party to the Delafield action generally so as to be estopped by any judgment therein. In truth, the Snow Pump Co. asked and was allowed to interplead, but only "as to the $92 claim," the order of Graves, J., reciting "that said Snow Steam Pump Co. be made party defendant for said purpose." For no other purpose and to no other extent was said Snow Steam Pump Co. a party to the Delafield action. Its application to withdraw even that claim was denied by the Court, and hence it is estopped as to the said $92 claim by the judgment in that case, but no further. As to the $2,573 mortgage, which is the subject of this action, the Snow Steam Pump Company was not only never a party in the Delafield action, but when receivers were appointed in that action it applied to the judge who appointed the receivers and obtained leave to bring this action against said receivers.
Thus, not only the Snow Steam Pump Co. was never a party to the Delafield action, as to the claim which is the subject of this action, either by service or general appearance, but it appears (to exclude a conclusion) that, on the contrary, during the pendency of that action, it brought the present action, not only with the knowledge (79) but with the assent of the judge having jurisdiction of the Delafield action, and said Court twice refused motions by this defendant to consolidate this action with the Delafield action. The Snow Steam Pump Co., not being a party thereto as to this matter, the judgment therein did not purport to pass upon the claim which is the subject of this action, and could not have passed upon it. It is true in the Delafield action, in which this plaintiff was a party as to the $92 claim, it appealed, but on the ground that there should be no final judgment till this independent action and another independent action had been decided. ( Delafield v. Construction Co., 118 N.C. 105), thus emphasizing that the subject-matter of this action was not before the Court in the Delafield case so as to be passed upon by the judgment therein. This independent action was not then before the Court, and any reference to it in the former opinion of this Court was merely incidental and obiter. In holding that the plaintiff is estopped as to this action by the judgment in the Delafield case there was error. Jones v. Beaman, 117 N.C. 259, 263; Jordan v. Farthing, ib., 181, 188; Temple v. Williams, 91 N.C. 82. Upon the agreed state of facts the judgment should be entered below in favor of the plaintiff.
REVERSED.
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