Advance Thresher Company v. Whiteside

• Decision Date: 12 May 1891
• Parties: ADVANCE THRESHER COMPANY v. WHITESIDE
• Court: Idaho Supreme Court

26 P. 660

3 Idaho 64

ADVANCE THRESHER COMPANY v. WHITESIDE

Supreme Court of Idaho

May 12, 1891

CHATTEL MORTGAGE-FORECLOSURE BY NOTICE AND SALE-ACTION FOR DEFICIENCY.-The plaintiff held a chattel mortgage given by defendant to secure the payment of three certain promissory notes made by defendant, for purchase price of certain personal property.

FORECLOSURE-DEFICIENCY.-Default having been made by defendant in the condition of mortgage plaintiff foreclosed by notice and sale as provided by statute. The return of the sheriff showed a deficiency of some $900, to recover which amount plaintiff brings this action. To a complaint setting forth all the details of the transaction, including the foreclosure sale and report of sheriff showing deficiency, in proper form, defendant enters a general demurrer, which was sustained by the court. Held that the action was properly brought, and that the action of district court in sustaining demurrer to complaint was error.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, costs to appellant.

Forney & Tillinghast, for Appellant.

A judgment rendered against a defendant without notice to him or an appearance by him is without jurisdiction, and is utterly and entirely void. (1 Black on Judgments, 220; Pennoyer v. Neff, 95 U.S. 727; St. Clair v Cox, 106 U.S. 353, 1 S.Ct. 354; Freeman v. Alderson, 119 U.S. 188, 7 S.Ct. 165.) The power of the clerk to enter judgment without the order of the court is derived from the statutes, and the existence of all the facts which the law requires to authorize the entry must therefore appear. (Providence Tool Co. v. Prader, 32 Cal. 634, 91 Am. Dec. 598; Kelly v. Van Austin, 17 Cal. 565; Stearns v. Aguirre, 7 Cal. 443.) The clerk has no power to enter judgment out of term when process is not personally served on the defendant. (McConkey v. McCraney, 71 Wis. 576, 37 N.W. 822; Northrup v. Shephard, 26 Wis. 220; Moyer v. Cook, 12 Wis. 335.) After sale at public auction under statutory proceedings to foreclose by notice and sale, or under provisions contained in the mortgage, the mortgagee, after applying the proceeds of the sale upon the debt, may sue for any deficiency. (Lee v. Fox, 113 Ind. 98, 14 N.E. 890; Jones on Chattel Mortgages, 711; Manufacturing Co. v. Lewis, 30 Kan. 541, 1 P. 812; Case v. Boughton, 11 Wend. 107; Morgan v. Plumb, 9 Wend. 288; Olcott v. Tioga R. Co., 40 Barb. 179; In re Haake, 2 Saw. 231, Fed. Cas. No. 5883.)

D. C. Mitchell, for Respondent.

There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property. (Code, sec. 4520; Ould v. Stoddard, 54 Cal. 613; Bartlett v. Cottle, 63 Cal. 366.)

HUSTON, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

HUSTON, J.

This is an appeal from an order and judgment of the district court for the county of Latah, sustaining defendant's demurrer to the complainant's complaint. The facts as they appear from the record are substantially as follows: On the nineteenth day of September, 1890, at Moscow, Latah county Idaho, the defendant made and delivered to plaintiff his three promissory notes--one being for the sum of $ 750, payable on the 1st of November, 1890; and the other two being each for the sum of $ 725, one payable the first day of November, 1891, and the other the first day of November, 1892. Said notes were given in payment for a threshing-machine, engine, etc., bought of the appellant by the respondent. Contemporaneous with the execution and delivery of said notes the defendant, for the purpose of securing the payment of the same, made, executed, and delivered to the plaintiff a chattel mortgage, in the usual form, and also a written agreement to which was attached one of the aforesaid notes, by the terms of which agreement the defendant agreed to deliver to the plaintiff certain other security in addition to said chattel mortgage, namely, certain bankable notes, to be taken from farmers for threshing to be done by the defendant to the amount of fifty dollars for each week from October 3, 1890, to the first day of November, 1890. It was also agreed in the said agreement that, in case the additional security mentioned therein was not delivered upon demand made by appellant upon respondent, and upon five days' notice of such demand, and failure upon the part of the...