American State Bank v. Holding

• Decision Date: 05 May 1962
• Docket Number: No. 42676,42676
• Citation: 189 Kan. 641,371 P.2d 167
• Parties: AMERICAN STATE BANK, a Banking Corporation, Oswego, Kansas, Appellee. v. William F. HOLDING and Dora Holding, Appellants.
• Court: Kansas Supreme Court

Page 167

371 P.2d 167

189 Kan. 641

AMERICAN STATE BANK, a Banking Corporation, Oswego, Kansas, Appellee. v. William F. HOLDING and Dora Holding, Appellants.

No. 42676.

Supreme Court of Kansas.

May 5, 1962.

Syllabus by the Court

1. An appeal perfected only from decisions, findings, rulings and judgments does not constitute an appeal from an order overruling a motion for new trial and under such a circumstance this court has no jurisdiction to review trial errors in the judgment.

2. The rights of the mortgagee to maintain an action of replevin for possession of mortgaged property for the purpose of foreclosure must be determined by the facts existing at the time the action was commenced.

3. A mortgagee of personal property has such an interest in the mortgaged property that he may, after condition broken, maintain an action of replevin for the mortgaged property.

4. In the absence of a stipulation to the contrary, a mortgagee of personal property shall have the legal title thereto, and the right of possession. (G.S.1949, 58-307.)

Charles F. Forsyth, Erie, on the brief, for appellants.

Willis K. Dillenberger, Oswego, for appellee.

WERTZ, Justice.

The American State Bank, plaintiff (appellee), commenced this action in replevin in the district court against William F. and Dora Holding, defendants (appellants), to recover possession of personal property pledged as secuity under three separate chattel mortgages given to secure three separate promissory notes. Simultaneously with the filing of its petition plaintiff filed its affidavit in replevin as provided by statute. Plaintiff's petition sets forth three separate causes of action each representing a separate note and chattel mortgage allegedly broken.

The first and third causes of action alleged the notes executed were long past due and in default and that plaintiff was entitled to the immediate possession of the mortgaged property. Attached to the petition were copies of the notes and mortgages mentioned therein. At the time of the filing of the petition an affidavit in replevin was filed that alleged the plaintiff had a special interest in and was entitled to immediate possession of the property described in each of the chattel mortgages.

The second cause of action alleged that the note and chattel mortgage were given to the Oswego Implement Company and for valuable consideration were sold to the plaintiff and that plaintiff was the holder in due course; that although the note was not due and payable, the plaintiff deemed itself insecure and under the terms of the chattel mortgage plaintiff was authorized to enter upon the premises of the defendants and take possession of the property. Copies of the note and mortgage were attached to the petition. An order of delivery was issued to the sheriff and under it all of the property covered by the three mortgages was taken and delivered to the plaintiff.

The plaintiff further alleged that under the terms of each of the chattel mortgages, having declared the terms of each mortgage broken, it was authorized to take possession of the property, and prayed for possession of the mortgaged property.

The defendants' answer to the first and third causes of action was a general denial. As to their second cause of action, defendants admitted the execution and delivery of the note and mortgage but alleged that the note was not due and that no demand was made for the return of the property given to secure the note prior to defendants' tender of payment of the amount due. Defendants further alleged that the property was wrongfully taken and that they were damaged in certain specified particulars for which they seek to recover against the plaintiff.

The case was tried before a jury. At the conclusion of the evidence the trial court directed the jury to return a verdict finding tht the plaintiff at the time the action was filed was entitled to possession of the personal property taken in replevin, and entered judgment accordingly. Defendants filed a motion for new trial, which was overruled, and they perfected their appeal from the trial court's order directing the jury to return a verdict for the plaintiff and from the judgment of the trial court finding plaintiff entitled to possession of the personal property.

At this juncture it may be noted that defendants did not appeal from the order of the trial court overruling their motion for a new trial. An appeal perfected only from a judgment, order or decision does not constitute an appeal from an order overruling a motion for a new trial, and under such circumstances the court has no jurisdiction to review trial errors in the judgment even though the order overruling the motion for a new trial has been specified as error. (Matlock v. Matlock, 182 Kan. 631, 323 P.2d 646; King v. King, 183 Kan. 406, 327 P.2d 865; Clarkson v. Mangrum, 186 Kan. 105, 348 P.2d 607). Matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error. (Stae v. Morrow, 186 Kan. 342, 349 P.2d 945; State...