dissenting opinion:
That we may clearly understand the legal question involved upon this appeal, it is ' necessary that a brief summary of the facts out of which the litigation grew should' be recited in chronological order. On the 4th of September, 1894, an apportionment warrant for $140.52 was issued by the city of Louisville in favor of John R. Gleason for the' original construction of that portion of Loo'ust street in front of a lot 50 by 165 feet, on the corner of Locust and Charlton streets, owned at that time by Matilda Sehnell, who became by marriage Matilda Meisger. This warrant was on the same, day transferred and assigned by Gleason to Peter Bitzer. On October 10, 1896, Mary M. Mercke filed her petition in the Jefferson circuit court against J. C. and Matilda Meisger (nee Sehnell), for the enforcement of a mortgage lien to secure the payment of a note for $300, held by her upon the same lot. She made J. R. Gleason a party defendant, having discovered from the records of the board of public worksi the existence of apportionment warrants previously issued to him against the same property: 'The petition set forth the warrant standing in Gleason’s name, giving the date, the amount thereof, and the name of the party against whom issued, and called upon Gleason to set up his claim thereunder, as provided by section 692 of the Civil 'Code of Practice. In her petition she stated that the mortgage lien held by her was superior to a,11 other liens against the property, except that of the apportionment warrant held! by Gleason. John R. Gleason never answered in that proceeding, and a judgment was entered, in Jan-, uary, 1897, enforcing the mortgage lien of Mrs. Mercke, and barring Gleason of any lien or claim upon the prop*311erty. Under this judgment the property was sold on the 15th day of February, 1897, to Mary Mercke, at a little less than the amount of her debt, interest, and cost. The sale was confirmed, and deed directed to be made to her. Thereafter, Mary Mercke, on the 21st day of June, 1897, sold and conveyed thie property to John J. Davis for $580, of which $550 was unpaid at the date of the institution of this suit. He, however, in the meantime, conveyed a small portion of the lot to one Charles' Distler. On the 24th of August, 1899, nearly five years after the issual of the apportionment warrant to Gleason, appellants, Bitzer and Gleason, brought this suit, and ask an enforcement of the lien for the apportionment warrant, and for a sale of the lot, making the parties in interest defendant. The appellees, Mercke, Davis, and Distler, in a joint answer, pleaded the judgment rendered in the suit of Mary M. Mercke against Matilda Schnell, and t'he sale. thereunder,, as a bar to appellants’ claim; and further alleged that the judgment in that proceeding had never been appealed from, reversed, vacated, set aside, or modified. The appellants, by way of reply to the answer of defendants, said that Mary M. Mercke, prior to the institution of her-suit against J. C. and Matilda Meisger, had notice of the fact that Gleason had transferred and assigned the apportionment warrant to the appellant Bitzer, and that Bitzer was, at the institution of that suit, the owner and holder thereof, and that he had never at any time, until a few days-before the institution of this suit, had any notice that Mary Mercke had instituted a suit to enforce her mortgage lien, or that Gleason had been summoned therein, and alleges that Da-vis still owed $550 upon the purchase money, and prayed that the proceeds of the note given by Davis to Mercke, or so much as might be *312necessary, be applied to the satisfaction of the lien under the apportionment warrant. The proof, we think, shows conclusively that Mrs. Mercke, the mortgagee, had no notice whatever that Bitzer had any interest in the warrant until the institution of this suit. Upon the facts- above stated, which are for t’he most part -set forth in the pleadings and not in dispute, the lower court dismissed Bitzer’s suit against the .appellees, Mercke, Davis, and Distler, and held that Bitzer was precluded from asserting his lien claim by reason of th^ julgment entered in- the- suit of Mercke against Schnell. The -ease turns entirely upon the effect of the decree and sale in the -old’ suit. ' Did it operate as an estoppel against John R. Gleason or his assignee, and does it bar him from asserting his claim as against Mrs. Mercke or the lot in question? Or, in other words, was the judgment in that case, in so far as it assumed to bar the claim of Gleason, an erroneous judgment, which could only be cured by appeal, or was it an absolute nullity, which could be disregarded in a collateral proceeding to subject the same property by the prior lien? It is a universal rule that courts have no power to adjudicate matters not involved in the issues in the case before them, and such adjudications, if made, are not binding upon the persons who are not parties to the proceedings.
In Black, Jud'g. section 181, the author, in discussing the effect of a judgment not in issue, says that: “Undoubtedly, a judgment so pronounced would be irregular and erroneous, as being contrary to the course -of law and the usual practice of the courts, and would therefore be liable to reversal. But whether it should be regarded as entirely void1 — a mere nullity — is a question involved in more difficulty. That no such result could properly follow is *313contended by Mr. Freeman, on tbe general principle that, ‘when jurisdiction over both parties and the subject-matter is once obtained, no error committed in the exercise of that jurisdiction can make the proceedings or judgment of the court void.’ This may readily be concedted. And yet, in no proper sense, can a court of law be said to have jurisdiction if there is no specific question or controversy submitted for its determination. It is not enough that thle parties are properly in court. That does not give the tribunal power to adjudicate any and all matters of difference between them. 'When we speak of ‘jurisdiction of the subject-matter,’ we do not mean merely cognizance of the general class of actions to which the action in question belongs, but we also mean legal power to pass upon and decide the particular contention which the judgment assumes to settle. And how can a court acquire jurisdiction of the particular contention, except it be clearly marked out and precisely defined by the pleadings of the parties?' And how can that be done, in any mode known to the law, save by the formation of a regular issue? There is therefore plausible ground for holding that, if the record fails to show an issue to be determined, the judgment will be void on its face.”
The case of Strobe v. Downer, 13 Wis., 10 (80 Am. Dec., 709), is a case much like that at bar. The syllabus states correctly what is decided, and is as follows: “The first mortgagee, who is made a defendant to a suit for the foreclosure of a second mortgage without any allegation, in the complaint contesting his title, has a right to assume that the proceding is to be conducted upon the theory that his lien is paramount to that of. the plaintiff. A second mortgagee brought an action of foreclosure, making the first mortgagee a defendant under the general *314allegation only 'that he had or claimed some interest in the mortgaged premises,’ and a judgment was rendered containing the usual clause, barring the defendants of all their rights, etc., and the second mortgagee bought the mortgaged premises at the foreclosure sale, -and received the sheriff’s deed therefor. The first-mortgagee, at the time the foreclosure suit was brought, had assigned his mortgage, but the assignment was never recorded, and the second mortgagee had no notice of it at the- time of the foreclosure sale. Held, that the rights of the first mortgagee, had he continued to hold his1 mortgage, would not have been cut off by the foreclosure and sale, 'and consequently the rights of his assignee were not cut -off thereby.”
• And the case of Munday v. Vail, 34 N. J. Law, 418, it was 'held: “A decree on any question which is entirely outside of the issues raised in the record is invalid, and .will be treated as a nullity, even in a collateral proceeding.” The court, spe'aking through Chief Justice Beasly; says: “ 'Jurisdiction’ may be defined to be the right to adjudge concerning t'he subject-matter in a given case-. To constitute this, three- things are essential: First, the court must have -cognizance >of the class of cases to which the, one to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue. That -a court can not go out ‘of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by -a multitude of authorities. A defect in a judgment arising from the fact that the matter decided was not embraced within the -issue has not, it would seem, received much judicial consideration, and yet I can not doubt that, upon -general *315principles, such defect must void a judgment. Persons, by becoming suitors, do not place themselves', for all purposes, under the control of the court, and it is solely over those particular interests they choose to draw in question that a power of judicial decision arises. ... A judgment upon a matter outside of the' issue must of necessity be altogether arbitrary and unjust, as it concludes a point upon which the parties' have not been heard. And it is upon this ground that the parties have been heard, or have had the opportunity of a hearing, that the law' gives so conclusive an effect to matters adjudicated. . . . Thus, Lord Ooke, treating this doctrine, says: ‘A matter alleged, that is neither traversable nor material,, shall not estop’ (Co. Lift. 353b); and in the note to the Duchess of Kingston’s Case, Smith, Lead. Cas., 533, Baron Oomyn is vouched for the proposition ‘that judgments are conclusive as to nothing which might not have been in question, whether or not material.’ ”
In Reynolds v. Stockton, 43 N. J. Eq., 211 (10 Atl., 385), a judgment of a court of New York was pleaded in bar of an action brought in a court of New Jersey. The New Jersey court inquired into the jurisdiction of the New York court to determine the question, and held that it had not jurisdiction, for this reason: “The1 decree in New York having adjudicated a matter not presented by the pleadings, nor within the issue, can have no higher effect than a judgment rendered ’ in our own courts under like condition, and must be treated as a nullity.” This case was carried to the supreme court of the United States upon a writ of error, where it was affirmed in an opinion delivered by Justice Brewer, reported in 140 U. S., 254 (11 Sup. Ct., 773. ,35 L. Ed., 464). He said, in giving the reasons for affirming the judgment, that, when *316a defendant appears in an action in a State court, and responds to the plaintiff, has filed his answer, but takes no subsequent part in the litigation, and on these pleadings a judgment is rendered in no way responsive to them, he is not estopped by the judgment from setting up that fact in bar of a recovery upon it. In the opinion he uses this language: “In order to give a judgment rendered by even a court of general jurisdiction the merit and finality of an adjudication between the parties, it must be responsive to the issues tendered by the pleadings.”
We could indefinitely multiply authorities from courts and text writers sustaining this view, but content ourselves with the above citations. •
Section 692 of the Civil Code of Practice provides that “the plaintiff in an action for enforcing a lien on property shall state in his petition the liens held thereon by others, mking them defendants; and may ask for and •obtain a judgment for the sale of the property to satisfy all of said liens which are shown to exist and though the defendants failed to assert their claim. Snob defendants shall not however be allowed to withdraw or receive any of the proceeds of such sale until they have shown their right thereto by answer and cross petition.” Under this provision of the Civil Code of Practice, it was the duty of Mrs-. Mercke, when she brought 'her suit to enforce her mortgage lien upon the lot in question, to state in her petition the liens held thereon by others, and to make them defendants. If there was no controversy between her and the other lienholders as to the validity and priority of the liens asserted to exist, she was entitled to a judgment for the sale of the property to satisfy all of the Hens, even though the other lien-holders failed to assert their claims; and when she dis*317tinctly set out the nature of Gleason’s lien, the amount thereof, and stated that it was a lien on the property superior to her own, he had a right to assume that, without answer, his rights were not to be affected by the'proceedings. Her own averments admit the priority of his claim, and raise no controversy to be tried; and the only judgment which could have been properly rendered was one decreeing a sale of the property to satisfy — First, the claim of Gleason; and, second, her own.
There is no question of a bona fide and innocent purchaser for value involved in this case. Mrs. Mercke became the purchaser of the lot under the judgment rendered in her favor, and she occupied no worse position after the sale than before. If appellant’s claim against the lot was superior to hers before the sale it continued to be good after; and, in my opinion, the judgment, in so far as it assumed to bar the claim of appellant Gleason, was altogether outside the issues made by the pleadings, unauthorized by the provision of the Code, and an absolute nullity.
Judge DuRelle concurs in this dissent.