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that large mortgages were made on prop-, behalf of themselves as stockholders of such erty owned or controlled by officers of the corporation. bank, upon which the estate will suffer a  These exceptional cases are those in loss of from 50 to 60 per cent. ; that the di- which appears one or more of the following rectors of said bank are liable to the receiver conditions: for damages sustained by the bank in conse “(1) Some action, or threatened action, by the quence of the negligence of said directors; board of directors or trustees, beyond their that the petitioner, if permitted to intervene, power; (2) a fraudulent transaction, completed
or contemplated by the acting managers, in will petition the receiver to bring actions connection with some other party or among in said cases.
themselves, causing injury to the corporation A demurrer to this petition was filed and rectors, or a majority of them, in their own
or stockholders; (3) action by the board of diwithdrawn, and a motion to strike out the interest, and in a manner destructive of the petition was then filed by the receiver, which corporation, or the rights of the other stockmotion was sustained. To this ruling appel- holders; (4) where a majority of the stockhold
ers are illegally and oppressively pursuing, a lant excepted, and prayed on appeal. This course in the name of the corporation, which ruling is assigned as error in this court, and is in violation of the right of the other stockrelied on for reversal,
holders, and can only be restrained by a court
of equity." Tevis v. Hammersmith, 31 Ind. The ground upon which appellant predi- App. 281, 282, 66 N. E. 79, 80; and see cases cates his right to be made a party to this there cited; McFarland v. Pierce et al., 151 suit is the showing made in his petition that Ind. 546, 549, 45 N. E. 706, 47 N. E. 1. he is a stockholder of the insolvent corpora
 It is further said in Tevis v. Hammertion, the property and business of which is smith, supra, that in such cases the combeing managed, directed, and disposed of by plaining stockholdersaid receiver under the orders of the court; / "must have had no share in the acts, nor have that as such stockholder, he, in common with ably. He must show to the court that he has
ratified them. He must bring his suit seasonother stockholders, is directly affected by exhausted all the means within his reach to each and all the proceedings had or taken in obtain redress within the corporation. He
must make a good faith and reasonable effort said receivership proceeding, and hence en
to induce the corporation to bring the suit ittitled to be made a party thereto under sec- self. Hawes v. Oakland, 104 U. S. 450, 26 L. tion 273, Burns 1914. This statute provides Ed. 827; Taylor v. Holmes, 127 U. S. 489, 8 as follows:
Sup. Ct. 1192, 32 L. Ed. 179; Cook, Corp.
(5th Ed.) § 740; Clark & Marshall, Priv. Corp. “The court may determine any controversy $ 543. It is ordinarily necessary to show a between the parties before it, when it can be demand upon the board of directors to bring done without prejudice to the rights of others suit, and a refusal upon their part; but the or by saving their rights; but when a complete law does not require idle ceremonies, and when determination of the controversy cannot be it is made to appear that a demand would have had, without the presence of other parties, the been unavailing, as when the corporation is uncourt must cause them to be joined as proper der the control of the wrongdoers, 'in the hands parties. And when, in an action for the re of its enemies,' such facts are sufficient. Wayne covery of real or personal property, a person Pike Co. v. Hammons, 129 Ind. 368 [27 N. E. not a party to the action. but having an in- 487]; Rogers v. La Fayette, etc., Works, 52 terest in the subject thereof, makes application Ind. 296; Board, etc., v. La Fayette, etc., R. to the court to be made a party, it may order Co., 50 Ind. 85, 100; Carter v. Ford Plate Glass him to be made a party by the proper amend- Co., 85 Ind. 180; Thompson, Corporations, s ment."
741; Knoop v. Behmrich, 49 N. J. Eq. 82, 23 There is no claim or showing made in said refusal to act are stated by an approved author
Atl. 118. The demand upon the board and its petition that appellant has any interest oth- 'material and issuable; if controverted, they er than that of a stockholder, or that, as a
must be proved. If proof of them fails, the stockholder, his interest is different from, or gone. Pomeroy, Eq. Jurisp. § 1095."
whole foundation_of the plaintiff's action is may be affected differently from, that of any
[4-6] Such being the rules governing stockother stockholder.
holders of a corporation in bringing actions  It follows that appellant, when he filed originally, for and on behalf of themselves, his petition, was, in a sense, already in court. there would seem to be even more reason for That is to say, the corporation in which he their application where the corporation is inis a stockholder was in court, and, generally solvent and its affairs are being managed speaking, the stockholders of a corporation, and settled through a receiver appointed by for the purposes of all litigation growing out and acting under the direction and orders of of the relations between such corporation the court. and a third person, surrender their personal
“When a court has taken possession of the or individual entity to the corporation in property of an insolvent corporation for adwhich they are stockholders, and when such ministration and appointed a receiver, the prop
erty of the corporation is a trust fund for the corporation is properly in court, the stock-payment of its debts” (Franklin, etc., Bank v. holders are, under the law, also in court, so Whitehead et al., 149 Ind. 560, 583, 49 N. E. far as is necessary for the purpose of adjudi- 592; 599 (39 L. R. A. 725, 63 Am. St. Rep.
302] and cases there cited); and the receiver cating all matters incident to the issues ten- in such case “is not the agent or representative dered between such corporation and such of either party to the action, but is uniformly other party or parties litigant. It is only in regarded as an officer of the court, exercising
for the common benefit exceptional cases that stockbolders will be of all parties in interest" (High on Receivers permitted to sue or defend a suit for and on [4th Ed.) $ 1).
While for the purposes of determining the "All that is said in the petition against the nature and extent of his title, such receiver receiver's conduct might be material to petition represents the corporation itself, yet he rep- those facts do not justify supplanting him by
to remove him and appoint a successor, but resents both stockholders and creditors, and a person not a receiver. 20 Am. & Eng. Encyc. is to be regarded as their trustee, charged Law, 198–205, and authorities there cited." with the duties of collecting, assembling, pro
These cases, supra, seem to be conclusive tecting, and preserving the assets of such as to the power and duty of the receiver to corporation for the benefit of those entitled collect, protect, and preserve all the assets of thereto, subject, of course, to the orders and the insolvent corporation for the benefit of directions of the court whose officer he is.
those entitled thereto, including stockholders Voorhees v. Indianapolis, etc., Co., 140 Ind. 220, 39 N. E. 738; Big Creek, etc., Co. v. tain and defend all actions for or against
as well as creditors, and to that end, to mainSeward, 144 Ind. 205, 42 N. E. 464, 43 N. D. such corporation and where the interest of 5; National, etc., Bank Co. v. Vigo, etc., Bank, 141 Ind. 352, 356, 40 N. E. 799, 50 Am. creditors requires, he may maintain and de
fend certain actions which the corporation St. Rep. 330; Northwestern, etc., Co. v. Kid
itself could not. der, 162 Ind. 383, 390–392, 70 N. E. 489, 66 L. R. A. 89, 1 Ann. Cas. 509; Coddington v.
 It follows, we think, that in the abCanaday, 157 Ind. 243, 255,257, 61 N. E. 567. sence of a showing of a refusal of the re
 The receiver in such a case is the ceiver to discharge his duty in the respects proper party to bring any action which the indicated, or some showing of collusion or corporation might have brought, and, was fraud on his part, by which the court had trustee for the creditors, maintain
been or was being misled and induced to act actions which the corporation could against, or to fail to act in, the interests of
those for whom such corporate assets were not.” Franklin, etc., Bank V. Whitehead, supra, 149 Ind. 583, 584, 49 N. E. 599, 39 L held in trust, appellant was not a necessary R. A. 725, 63 Am. St. Rep. 302, and cases party to said action, and hence not such a there cited; Voorhees v. Îndianapolis, etc., party as the first proviso of the statute quot
ed above requires should be made a party. Co., supra, 140 Ind. 239, 39 N. E. 738.
There is no claim that the second proviso While our Supreme Court recognizes that a general creditor, by reason of his lien upon facts set up in said petition.
of the statute has any application to the the property so held in trust by such receiver, “has the right to intervene and contest the
(9). The conclusion we have reached, we validity as well as the priority of other think, makes it proper to observe that in our claims or asserted liens" (Franklin, etc.,
judgment the trial court, in the exercise of
its discretionary power, might, in certain Bank v. Whitehead, supra, and cases cited), yet such court has also frequently held that cases, admit a stockholder to intervene, such receiver “represents the creditors, and where its refusal to do so would not constihas the exclusive right to recover and protect tute reversible error under the statute, supra; the assets of the corporation, and that such and in this connection we may also add that actions cannot be maintained by the creditors notice by publication to the stockholders of
a bank, alleged to be insolvent, is a necessary in their own names." Northwestern, etc., Co. v. Kidder, supra, 162 Ind. 391, 70 N. E. 492, for such bank (Burns 1914, $ 3346), and we
prerequisite to the appointment of a receiver 68 L. R. A. 89, 1 Ann. Cas. 509, and cases have no doubt but that after such bank has there cited.
been thus brought into court and a general It is likewise held that, in such cases, the right of action being one in favor of the cor
receiver appointed, with complete authority poration and not in favor of the individual to take charge of the assets of such corpora, shareholders, the latter cannot bring the ac- the stockholders and creditors, that either a
tion, and manage and administer the same for tion, but it may be brought by the receiver stockholder, or a creditor who has establishCoddington v. Canaday, supra, 157 Ind. 256, ed his claim, has such a standing in court 61 N. E. 567.
that he may, on proper showing, ask and obIn the case of Voorhees v. Indianapolis, tain from the court orders and directions etc., Co., supra, where a creditor of the in- on the receiver in furtherance of the intersolvent corporation attempted to intervene, ests of the stockholders and creditors, and the court used the following language, which if the receiver disobeys such orders, such we think pertinent and applicable to the peti- stockholder or creditor may ask his removal tion under consideration:
by the court appointing him, and the refusal: "The petition and proposed complaint,
of such court to take such action as would were nothing more nor less than a proposal on the part of the (petitioner) to usurp the func protect all concerned would be ground for tions of the receiver, or practically to appoint complaint in the appellate tribunal. Vooranother receiver. The petitioner had no right hees v. Indianapolis Car, etc., Co., supra. to do this. Beach Rec. $ 167."
It appears from the record and appellant's If one creditor could do so, each one could, petition that the claims of the three banks, and the purposes and objects of a receiver- the allowance of which appellant, in his
ed by the court upon the agreement of the 2. APPEAL AND ERROR Om837(1) SCOPE parties, after it had heard the evidence and
In determining who are parties to a judgment considered the petition and recommendation appealed from, the appellate tribunal will look of compromise filed by the receiver, that through the record to the pleadings, and, if appellant and another stockholder were pres- necessary, to the summons. ent in court, and appellant was allowed to
[Ed. Note.-For other cases, see Appeal and file objections to said petition, and excepted Error, Cent. Dig. § 3262; Dec. Dig. em837(1).]
SCOPE to the ruling on said objections, and asked 3. APPEAL AND ERROR Cw327(7)
PARTIES-How DETERMINED. an appeal therefrom. It appears, therefore,
Where intervener by his petition made & that as to such claims, appellant was given company defendant and the record showed apample opportunity to interpose any objection pearance for the company and for its receiver, or defense, and, if he had any valid defense intend to make it so save through its receiver,
it was in fact a party, though intervener did not to such allowances, he should have then pre- as indicated by absence of summons upon it, to sented it to the court and properly prosecuted which the court need not look, owing to the rec
ord showing. his appeal from the ruling thereon. There is no charge in appellant's petition that the Error, Cent. Dig. 88 1814, 1818; Dec. Dig.
[Ed. Note.—For other cases, see Appeal and allowance of said claims, so made by the 327(7).] court, was induced by any fraud or collusion 4. APPEAL AND ERROR 327(2) SCOPE practiced upon the court by either the re PARTIES—How DETERMINED. ceiver or the claimants.
The fact that no answer was filed by a com As to the other suits contemplated by served with summons, and which appeared, will
pany made defendant by the petition, but not appellant, his petition shows that they were not control the record or show that it was not suits, the bringing of which, under the au a party. thorities cited supra, properly fall within [Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. &$ 1814, 1818; Dec. Dig. Om the powers and duties of the receiver, subject 327(2).] only to the orders and directions of the 5. APPEAL AND ERROR Om 327(2)—NECESSARY court in relation thereto, and there is no PARTIES. showing that the receiver had ever been ask Since findings and conclusions of law are ed to bring such suits, or that he had refused effective only when carrie into the judgment, to bring them, or refused to ask and obtain ties to the appeal.
only parties to the judgment are necessary parthe necessary orders and directions of the
[Ed. Note.-For other cases, see Appeal and court in reference thereto. This court will Error, Cent. Dig. 88. 1795, 1814, 1831, 1834; assume, in the absence of a showing to the Dec. Dig. Om 327(2).] contrary, that the receiver has or will dis- 6. APPEAL AND ERBOB 327(7)-NECESSARY
PARTIES. charge his duties as such, and that the
Where the judgment was that intervener court under whose directions such receiver take nothing, it was against him and in favor is acting will make all orders necessary upon of all defendants to his action, and they were the receiver to the full protection of the cor- all necessary parties to his appeal. poration and the interests of its shareholders
[Ed. Note.--For other cases, see Appeal and
Error, Cent. Dig. $ 1818; Dec. Dig. Ons and creditors.
327(7).] If, as appellant's brief seems to imply, 7. APPEAL AND ERROR O 327(2)—NECESSARY there was collusion and fraud practiced upon PARTIES. the court in obtaining the allowance of the Where the judgment was that intervener claims of the said banks, appellant should him was in favor of only two of three defend
take nothing, but judgment for costs against have so alleged in his petition, and if such be ants, the judgment on the merits would control the fact, appellant and the other stockholders that for costs in determining who were necesare not without a remedy.
sary parties to the appeal, so that all three de
fendants were necessary parties. We find no error in the record, and the
[Ed. Note.-For other cases, see Appeal and judgment of the trial court is therefore af. Error, Cent. Dig. $8 1795, 1814, 1831, 1834; firmed.
Dec. Dig. Om 327(2).]
PARTIES-DEFENDANTS. (66 Ind. App. 509)
Regardless of whether a company was a necSPANGLER V. SAVINGS LOAN & TRUST essary party, where intervener by his petition CO. et al. (No. 9084.)
made it defendant, he could not thereafter be
heard to say that it was not a proper party. (Appellate Court of Indiana, Division No. 1.
[Ed. Note.-For other cases, see Appeal and Nov. 24, 1916.)
Error, Cent. Dig. $ 3595; Dec. Dig. 882(4).} 1. APPEAL AND ERROR 1077 - SCOPE 9. APPEAL AND ERROR 336(1) SCOPE
WAIVER OF ERRORS JURISDICTIONAL DE OMISSION OF NECESSARY PARTIES.
Where a company, made defendant below Whére appellees, in asking an extension of and in whose favor a judgment ran, was not time to file briefs, agree not to move to dismiss made a party to the appeal, the appeal would the appeal, they waive all errors within their of necessity be dismissed. power to waive, but do not confer on the court [Ed. Note. For other cases, see Appeal and jurisdiction of a party not before it.
Error, Cent. Dig. $ 1870; Dec. Dig. Om336(1).) (Éd. Note. For other cases, see Appeal and Error, Cent. Dig. $8 3135, 3136; Dec. Dig. Appeal from Circuit Court, De Kalb Coun1077.)
ty; Frank M. Powers, Judge.
Om For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied. Transfer denied.
Suit by the Savings Loan & Trust Com-, plaint in said action brought by S., as in the pany against the Auburn Creamery Company, judgment of the receiver's counsel may be wherein Michael Boland was appointed re- necessary to quiet any title, legal or equitaceiver for defendant company, and petitioned ble, of the creamery company, and to enforce for leave to sue or defend against W. W. any claims which such company may have Spangler, who claimed certain lands also for specific performance of any contract claimed by the defendant company, and with S. wherein said W. W. Spangler intervened, and This petition was examined and approved impleaded Isaac M. Lent, Thomas A. Carter, by the court. On January 26, 1914, appears and Simon Trovinger. Lent was defaulted, the following entry of the proceeding had and Carter and Trovinger filed an intervening in the receivership proceedings, to wit: cross-complaint. The causes in the interven “Comes now William W. Spangler and files tion and cross-complaint were consolidated. an intervening petition making the Savings From a judgment that intervener and cross
Loan & Trust Company, Auburn Creamery Com.
pany, and Michael Boland its receiver, and complainants take nothing, Spangler alone Isaac M. Zent, Thomas A. Carter and Simon appeals, making all parties appellees save Trovinger parties, and a summons is now orderthe Creamery Company. Appeal dismissed.
ed issued for all of said defendants ercept
Michael Boland, receiver of Auburn Creamery P. V. Hoffman and Willis Rhoads, both of Company, returnable on the first day of March Auburn, for appellant. James E. Pomeroy, term, 1914, of this court. Which intervening, Isaac M. Zent, and Link & Atkinson, all of petition is in these words as follows, to wit.”
(Our italics.) Auburn, and Leonard, Rose & Zollars, of Ft. Wayne, for appellees.
This petition bears the title of the orig. inal action, viz. “Savings Loan & Trust Co.
v. Auburn Creamery Company," and alleges HOTTEL, P. J. On August 8, 1913, the that S., for his intervening petition in said Savings Loan & Trust Company, a corpora-action, "Complains of the Auburn Creamery tion engaged in the banking and trust com- Company and Michael Boland, its receiver, pany business, in the city of Auburn, Ind., and says that your intervening petitioner and hereinafter referred to as the “Trust is the owner in fee simple of,” etc. (describing Company,” brought suit against the Auburn said real estate); that the creamery company, Creamery Company, a corporation, hereinaft- through its receiver, Michael Boland, is asker referred to as the “Creamery Company,” sing an order to sell said property for the purin which it sought to recover upon four notes pose of paying the debts of such company, and to foreclose a mortgage, given to secure and thereby casting a cloud on the title of S.; the same by the latter to the former com- that the trust company is claiming to have pany, and also asking for the appointment of a mortgage lien on said property executed by à receiver for the creamery company. On said creamery company; that such mortgage August 20, 1914, Michael Boland was ap- was not executed by the creamery company; pointed receiver, and the cause was continued that such company had no title to said real as to the foreclosure proceeding. On August estate, either legal or equitable, at the time 27th said receiver accepted said trust and fil-lof or since the execution of said mortgage; ed his bond therein, which was approved by that Isaac M. Zent, Thomas A. Carter, and the court, whereupon said receiver filed a pe- Simon Trovinger claim an interest in said tition showing that the creamery plant, which property by virtue of a written contract behad been operated by said creamery company, tween them and S., which contract is void bewas abandoned, and asking an order of the cause of their failure to comply with the court authorizing him to rent the same, which terms thereof; that such contract casts a petition was granted and the receiver author- cloud upon the title of S.; that the creamery ized to rent said plant until the further order company, through and by virtue of such conof the court. On November 13, 1913, the re-tract, claims to be the equitable owner of ceiver filed a petition, in which he showed to said property, which claim is unfounded, etc. the court that the said creamery company was the owner of the real estate on which its said strained from selling said property, or set
Prayer that the receiver be enjoined and replant was located in De Kalb county, Ind., de- ting up any title to it or right or lien upon scribing it, the same being the real estate in
it, and that said
trust company, volved in said foreclosure suit. The petition
Carter and also alleged that the receiver was in posses
Trovinger be made parties to this sion of said real estate; that one W. W.
petition to answer concerning their interest in Spangler, the appellant, hereinafter referred to as "S.," asserts title to and claims to be
said property and for other proper relief.
The entry of March 3, 1914, shows an apthe owner in fee simple thereof, and has instituted an action in the De Kalb circuit court pearance to the petition of S. by J. E. Pomagainst said creamery company and said re- eroy for Carter and Trovinger, service on ceiver to quiet title thereto; that the claims Zent, and a default as to him, and the folof S. are unfounded, etc., and an order of lowing further appearance: said court is asked directing said receiver to for the Savings Loan & Trust Company, Au
"Come now Link and Atkinson and appear institute action at law or suit in equity, ei- burn Creamery Company and receiver to the in
de S. alone appeals and makes the trust com
Carter and Trovinger filed an answer in fact and should not recover on his intervening general denial, and also a pleading designat-petition, herein. ed an intervening cross-complaint, in which A. Carter and Simon Trovinger have no title to
“2. That the intervening petitioners Thomas they allege that they and Zent, as trustees, or lien upon said real estate in controversy and own the equitable title to the real estate in- set out, and should not recover upon their involved; that on April 21, 1909, they as trus- tervening petition herein.
"3. That each of the intervening petitioners, tees entered into a contract with S. for the William W. Spangler, Thomas A. Carter, and purchase of said real estate, which contract Simon Trovinger should take nothing by their is set out and made part of said cross-com- petitions and actions herein. plaint; that they took possession of said real the Auburn Creamery Company, and Michael
“4. That the Savings Loan & Trust Company, estate under said contract and made valuable Boland, Receiver, should recover of said inter. and lasting improvements thereon; that they veners, and petitioners their costs, made and
taxed at dollars.” (Our italics.) are, and at all times have been, ready and willing to perform their part of said contract,
The judgment is as follows: and are entitled to a deed to said real estate;
“It is therefore considered, adjudged, and de that s. has refused and neglected to make fact and conclusions of law, that the intervener,
creed by the court, upon the special findings of such deed; that they are ready and willing William W. Spangler, take nothing by his action to pay to S. whatever sum the court may find herein, and that the Savings Loan & Trust to be due to him; that their codefendants, S., burn Creamery Company, recover of and from
Company and Michael Boland, receiver of Authe trust company, and the creamery com- said intervener, William W. Spangler, their pany, by said receiver, are each claiming costs herein made and taxed at dollars. an interest in said land and asserting some
"It is further adjudged and decreed by the
court that the defendants and cross-intervener title or lien adverse, etc., which are un- Thomas A. Carter and Simon Trovinger take founded and without right.
nothing by their cross-petition herein, and that Prayer for judgment for cross-complain the defendants, Savings Loan & Trust Comants, that their title be quieted as against all Creamery Company, recover of and from said
pany and Michael Boland, receiver of Auburn claims and liens of S., and against said code-defendants and cross-interveners Thomas A. fendants Savings Loan & Trust Company Carter and Simon Trovinger their costs herein
dollars.” (Our italics.) and the Auburn Creamery Company, by made and taxed at Michael Boland, receiver, that the court determine the amount due S. from cross-com- pany, “Michael Boland, receiver of the Auplainants, and that, upon the payment of burn Creamery Company," Carter, Trovinger, such sum, S. be ordered to execute a deed and Zent appellees. The Auburn Creamery to cross-complainants to said real estate, and Company is not made an appellee. The apupon his failure to do so, that a commissioner peal is vacation appeal, and it is be appointed to execute such deed, etc. suggested by those who are made appellees
S. filed an answer to said cross-complaint, that such company is a necessary appellee, admitting its allegations in so far as they and that appellant's failure to so include affect the rights of Trovinger, Carter, and it in the assignment of errors deprives Zent, as trustees in said contract, and alleg- this court of jurisdiction of the appeal. ing his willingness to convey said property to In answer to this objection, appellant insists, said parties upon the payment of said pur- in effect, that appellees are in no position to chase money, and denying that said "Auburn urge it, and that, in any event, the Auburn Creamery Company or its receiver, Michael Creamery Company was not a necessary parBoland,” or the trust company have any in- ty below, and was not in fact a party deterest in said property, Michael Boland, re- fendant, and hence not a necessary appellee. ceiver of the creamery company, and the  Appellant's first contention is based on trust company, each appeared to said cross- the fact that appellees filed a petition asking complaint of Trovinger and Carter, and filed an extension of time in which to file their an answer to such cross-complaint, and to the briefs, in which they were required to, and intervening petition of S.
did, say, in effect, that no motion to dismiss Upon the motion of the receiver, the caus- would be filed by them, and that their brief es of action in said intervening petition of S., would be upon the merits of the case. By and said cross-complaint of Carter and Trov. such petition appellees waived their right to inger, were consolidated for the purposes of file any motion to dismiss, and, so far as trial. S., the receiver, and said cross-com
was within their power to do so, conferred plainants each respectively asked for a spe upon this court the right to dispose of the apcial finding of facts and conclusions of law. peal upon its merits. It was, however, beWhereupon the cause was submitted to the yond their power, by such petition and waivcourt for trial, and, after hearing the evi- er, to confer upon this court jurisdiction of a dence, the court returned a special finding of party who was not before it, either as appelfacts. This finding is lengthy, and is not lant or appellee. Midland R. R. Co. v. St. necessary to our disposition of the appeal.
Clair, 144 Ind. 363, 369, 42 N. E. 214. This The conclusions of law are as follows: brings us to appellant's second contention,
(1) That the “1. That the intervening petitioner William which has two phases, viz.: W. Spangler has no title to or lien upon real creamery company was not a necessary party estate described and set out in the findings of below, and, for this reason, not a necessary