Bank of Commerce v. Williams

• Decision Date: 08 June 1937
• Docket Number: 2016
• Parties: BANK OF COMMERCE v. WILLIAMS
• Court: Wyoming Supreme Court

69 P.2d 525

52 Wyo. 1

BANK OF COMMERCE v. WILLIAMS

No. 2016

Supreme Court of Wyoming

June 8, 1937

APPEAL from the District Court of Sheridan County; JAMES H. BURGESS Judge.

Suit by the Bank of Commerce, a corporation, against Kate Williams individually, and as executrix of the estate of Ernest B Williams, deceased. From an order denying defendants' motion to correct alleged irregularities in obtaining default judgment and orders, defendants appeal.

Affirmed.

For the defendants and appellants, the cause was submitted on the brief of John G. Hutton and H. Glenn Kinsley of Sheridan.

The appeal is from a denial of a motion to correct irregularities in obtaining judgment in a mortgage foreclosure of lands in different counties. The motion was made under Sections 89-2301, 2304, 2306 and 2310, R. S. 1931. Appellants have complied with the requirements of the above statute. Irregularities in procuring a judgment include lack of jurisdiction. Sache v. Wallace, (Minn.) 112 N.W. 386; Freeman on Judgments, Sec. 97; Cooper v. Rhea, (Kan.) 107 P. 799; Bank v. Ross, (Kan.) 133 P. 538; Hockaday v. Jones, (Okla.) 56 P. 1054; State v. Broaddus, (Mo.) 289 S.W. 792. The action was commenced without filing a claim against the estate in violation of Section 88-3106 and Sec. 88-3109, R. S. The irregularity also includes lack of jurisdiction in decreeing the sale of 46 separate legal subdivisions of land, grouped in four separate and distinct bodies of land, located in different counties, and described in different mortgages, ordered to be sold by the sheriff of one county, without notice of sale in the other county. Mitter v. Black Diamond Coal Company, 28 Wyo. 439. The statute authorizes district courts to modify their judgments, after term for mistake, neglect or omission of the clerk, or irregularity in obtaining judgment or order. The question of jurisdiction might be raised irrespective of the statute. 12 C. J. 1238 and cases cited. Huntington & McIntyre v. Finch & Co., 3 O. S. 445. The motion was supported by an affidavit setting forth the grounds of irregularity upon which the motion was made. The statute requiring the presentation of a claim against an estate before action is commenced was adopted from California. We cite the following California cases. In re Turner's estate, 128 Cal. 388; Bank v. Charles, (Cal.) 24 P. 1019; Perkins v. Onyett, (Cal.) 24 P. 1024; Evans v. Johnston, (Cal.) 46 P. 906; Sonoma County v. Charles, (Cal.) 24 P. 1019; Kendrick State Bank v. Barnum, (Idaho) 173 P. 1144; O'Keefe v. Foster, 5 Wyo. 343. Section 89-701 and Section 89-702 provide foreclosure procedure, where property is in more than one county and their provisions are mandatory. Osborn v. Lidy, 37 N.E. 434. Section 211 of Chapter 71 provides that if mortgaged premises consist of distinct tracts, they must be offered for sale separately. See also Section 2209 of Chapter 89. Section 2210 of Chapter 89 does not sustain the court's order. The following cases deal with the question: Schilling v. Lintner, 43 N. J. Eq. 444; Coxe v. Halstead, 2 N. J. Eq. 311; Merwin v. Smith, 2 N. J. Eq. 182 and Johnson v. Garrett, 16 N. J. Eq. 31; Ellsworth v. Lockwood, 42 N.Y. 89; McIntyre v. Wyckoff, (Mich.) 78 N.W. 654; Walker v. Schultz, (Mich.) 141 N.W. 543; Hawes v. Detroit Ins. Co., (Mich.) 67 N.W. 329; Keyes v. Sherwood, (Mich.) 39 N.W. 740. The procedure followed, defeated appellants' redemption rights under Section 89-2969, R. S. 1931. Durm v. Fish, (Mich.) 9 N.W. 429; O'Connor v. Keenan, (Mich.) 94 N.W. 186; Cole v. Canton Mining Co., 202 P. 830; 19 R. C. L. 575; McLaughlin v. Schmied, (Ky.) 12 S.W. 1061; Bovay v. Townsend, 78 F.2d 343. Appellants' motion for a correction of the irregularities should have been sustained. Midwest Ref. Co. v. George, 44 Wyo. 25.

For the plaintiff and respondent, the cause was submitted on the brief of Lonabaugh & Lonabaugh of Sheridan.

Appellants' brief contains erroneous statements of fact. Irregularities in obtaining judgments must appear on the face of the record and cannot be shown by ex-parte affidavits after the court has lost jurisdiction over the judgment. Butler v. Soule, (Calif.) 56 P. 601; Harrison v. Slaton, (Mo.) 49 S.W.2d 31. Appellants cite authorities on the question of due process of law which are clearly inapplicable to the present case. For example, the case of Mitter v. Black Diamond Coal Company, 28 Wyo. 439, containing a clear definition of irregularities in obtaining judgment. Counsel cite Section 211 of Chapter 71 of the Revised Statutes relating wholly to sales by statutory foreclosure and not foreclosures in equity as was done in this case. A number of cases are also cited relating wholly to statutory foreclosure by advertisement. This rule applies in court foreclosures which afford an opportunity for objections to confirmation of sale. There was no irregularity in obtaining a judgment in this case. The motion did not include both defendants and was therefore bad. Gordon v. Little, (Nebr.) 59 N.W. 783; Greenwalt v. Natrona Improvement Company, 16 Wyo. 226. The Hutton affidavit was undeserving of consideration. Harrison v. Slaton, supra. Such an attack on a judgment can only be made in a court of equity. Delfelder v. Teton Land Investment Co., 24 P.2d 702; Mitter v. Company, supra; Yohe v. Court, 33 Wyo. 281. A sale en masse is not void, but voidable only for fraud, or prejudice resulting to the owner of the equity of redemption. Willard v. Finnegan, (Minn.) 44 N.W. 985; Abbott v. Peck, (Minn.) 29 N.W. 194; Swenson v. Halberg, 1 Fed. App. 444; Batini v. Ivancich, (Calif.) 287 P. 523; Coughlan v. City, 212 P. 867; Godchaux v. Morris, 121 F. 482; Johnson v. Hambleton, 52 Md. 378. None of the alleged irregularities set forth in the motion are sufficient to affect the court's jurisdiction. Tibbals, et al. v. Graham, (Wyo.) 61 P.2d 279. Counsel have overlooked the distinction between errors of law and irregularites in obtaining judgment and order, as is shown by their brief. Follett v. Alexander, (O. S.) 50 N.E. 720; Cummings v. Ross, (Calif.) 27 P. 62; Walters v. Walters, (Ill.) 23 N.E. 1120; In re Hehrens Estate, (Iowa) 73 N.W. 351. The court had jurisdiction. 5 C. J. 1323; Secs. 701 and 702, Chapter 89, R. S. 1931; 42 C. J. 1528; Boulter v. Cook, 32 Wyo. 461; Morsbach v. Thurston County, (Wash.) 268 P. 135; Kelley v. Eivan, (Wyo.) 231 P. 678; Bonifield v. Price, 1 Wyo. 245; 19 Wyo. 110.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The district court of Sheridan County by its order denied a motion made by the appellants Kate Williams individually and Kate Williams as executrix of the Estate of Ernest B. Williams, deceased, as defendants in that court, said motion being designated as one to "correct irregularities in obtaining judgment and orders." The judgment and orders thus attacked had been theretofore rendered in favor of the respondent Bank of Commerce, a corporation, as plaintiff below, in a suit to foreclose two real estate mortgages, each including different lands, but of the same date and securing the same indebtedness. By direct appeal the action of the district court in thus disposing of the motion above mentioned is upon the record made submitted here for review. The parties will usually hereinafter be referred to as "plaintiff" and "defendants" or by their respective names.

The facts are these: On February 17, 1917, the defendant Kate Williams and her husband, Ernest B. Williams, executed and delivered to the plaintiff their joint and several note, payable to its order, for the sum of $ 20,000.00, due five years after date, with interest payable semi-annually, at the rate of seven per cent per annum. To secure this indebtedness, on the same day, the makers of the note also executed and delivered to the plaintiff the two mortgages already referred to, one of which described lands located in Sheridan County and the other lands situated in the adjoining county of Johnson. Both mortgages were duly filed for record in the several counties where the lands lay.

Ernest B. Williams died in Sheridan County in the spring of the year 1920, leaving a last will and testament, wherein his wife was named as sole legatee and devisee and also as executrix of his estate,. At that time there had been paid on sundry occasions, according to the endorsement of the note, interest on the indebtedness totaling $ 3515.77. On or about the 8th day of April, 1920, Kate Williams, the widow, was appointed executrix of her husband's estate by the district court of Sheridan County, and has not since been discharged. Since that date there was paid at different times, commencing on the date last mentioned, according to the note's endorsements, the sum of $ 15,228.74 on account of interest due thereon. Nothing was ever paid on the principal sum and the last interest payment was made in the fall of the year 1930.

On July 23, 1935, principal and interest being in default, plaintiff filed in the district court aforesaid its petition against the said defendants for judgment on the note described above and for a decree foreclosing the several mortgages. After pleading the facts concerning the note and mortgages, the death of Williams, the character of his last will and the appointment of his widow as executrix, as already related, the pleading alleged: "That the plaintiff on or about the 21st day of April, 1920, duly presented its claim to said executrix and filed the same in said court against said estate, which said claim was duly approved by said executrix on or about the 25th day of June, 1920." These allegations were followed by the usual averments of failure on the part of the defendants to pay the principal and interest due, a statement of the several amounts claimed on account...