
    Clarence A. Parks, as Trustee, etc., et al. v. Albert Honeywell.
    Necessary Parties — Petition in Error Dismissed. Where, in an action to foreclose a mortgage, a receiver was appointed at the instance of a mortgagee, and was afterward discharged on the application of a person who claimed to be and was recognized by the court as guardian of the mortgagor, alleged to be an insane person, such guardian is a necessary party to a review in this court of the order discharging the receiver, and a petition in error making the mortgagor alone defendant in error must be dismissed.
    
      Error from Harper District Court.
    
    The nature of the action and the material facts are stated in the opinion herein, filed. July 6, 1895.
    
      Francis M. Hayward, Frederick W. Griffin, and Frank H. Foster, for plaintiffs in error.
    
      Sankey & Campbell, for defendant in error.
   The opinion of the court .was delivered by

Allen, J. :

This case comes here on a petition in error to reverse an order of the district court discharging a receiver. W. P. Thayer was plaintiff, and Albert Honeywell, The Colonial and United States Mortgage Company, Limited, Phelps & Bigelow Windmill Company and E. Howland were defendants below. Howland and the windmill company both filed cross-petitions claiming liens on the lands covered by the plaintiff’s mortgage. Afterward the plaintiffs in error were made parties defendant, and answered, setting up a mortgage on the same lands. Afterward, on the 8th day of January, 1891, on their application, a receiver was appointed to take charge of the mortgaged property, who filed a bond and entered on the discharge of his duties. On the 12th day of June, 1891, a motion was made by W. E. Groves, as guardian for Albert Honeywell, in which it was stated that on the 10th day of June, 1891, Honeywell was declared a person of unsound mind and Groves duly appointed his guardian, asking that the receiver be discharged. This motion was heard by the court on the 12th day of June, over the objections of the plaintiff in error, one of which was that Groves had not been made a party to the action. The court thereupon ordered that he be made a party, proceeded to hear the motion, and made an order removing the receiver. Various errors are alleged in the proceedings of the court. A motion is made on behalf of the defendant to dismiss the petition in error because of a want of proper parties. This motion must be sustained. The order complained of was made at the instance of Groves, who claimed to be the duly-appointed guardian of Honeywell. Whatever errors the court may have committed were at his instance, and he is a necessary party in this court. Groves was recognized by the court as guardian.

It is unnecessary to inquire whether the other in-cumbrancers who were made parties below are also necessary parties liere, as the absence of the guardian is fatal to the jurisdiction of this court.

The petition in error is dismissed.

All the Justices concurring  