Majors v. Cowell

By the Court, Crockett, J.: The questions presented by this record are: first, Whether the statute of this State regulating the filing of a notice of lis pendens and defining the effect thereof, was intended to apply to actions pending in the Circuit Court of the United States. Second, Whether the statute has been adopted as a rule of practice in equity cases, by the rules prescribed by the Supreme Court of the United States, or by the rules of the Circuit Court for the Mnth Circuit. Third, Whether Cowell, at the time of the conveyance to him, was affected with constructive notice of the pendeney of the action of Norton v. Meader et al, independently of the notice of Us pendens filed in that action. Fourth, If Cowell was not a party to that action, whether he became bound by the judgment by uniting in the appeal, and paying his proportion of the costs, on the affirmance of the decree. These points will be noticed in their order. On the first point, it will be sufficient to observe that ordinarily, statutes of the several states regulating remedies by means of judicial proceedings are to be understood as intended to apply only to proceedings in the courts of the particular State, unless it clearly appears that they were intended to have a wider [483]scope; and in the absence of a clearer expression of the legislative will to that effect, it is not to be inferred, waiving the question of power, that a State statute was intended to furnish remedies to suitors in the Federal courts, whose powers are derived wholly from the Constitution and laws of the United States. There is nothing in our statute to indicate that it was intended to have that effect, or to afford a remedy except to suitors in our own courts.

Nor do we find that our statute in respect to the filing of a notice of Us pendens, or any equivalent proceeding, has been incorporated into the rules promulgated by the Supreme Court of the United States as applicable to suits in equity; and the rules of the Circuit Court for the Ninth Circuit, are likewise silent on that subject. This brings us to the question, whether it sufficiently appears from this record, that Cowell was a formal party to the action of Norton v. Header ct al., and if not, whether he was affected with constructive notice of the pending of the action, independently of the notice filed with the recorder.

The Court does not find that Cowell was a formal party to the action; but it is contended, that in support of the judgment, and in the absence of an express finding on that point, we should presume a finding to that effect. But under our present Code of Civil Procedure, as we have repeatedly held, the findings must support the judgment, and no facts in issue ■will be presumed to have been proved except those which are found. We must therefore assume, for the purposes of this decision, that Cowell -was not a formal party to the action, and the Court finds that he was a purchaser for a valuable consideration, and had no actual notice of the pendency of the action, when he took the conveyance from Jordan. The findings further show, that Jordan did not file his ansrver in that action until long after the conveyance to Cowell, nor docs it appear, that he ivas ever served with process, or in any manner appeared to the action, prior to his answer. The case, then, as presented by the record, is,' that after the complaint in Norton v. Header et al, (in which Jordan was named as a defendant) was filed, but before there was any service of process on him, and before he had appeared to the ac