Beiseker v. Svendsgaard
| Decision Date | 10 October 1914 |
| Citation | 149 N.W. 352,28 N.D. 366 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Wells County, Coffey, J.
Action to enjoin the foreclosure of a mortgage by advertisement. Order denying injunction. Defendant appeals.
Reversed.
George H. Stillman, for appellant.
The proceedings to enjoin a mortgage foreclosure by advertisement are purely ex parte, and the statute providing this remedy does not contemplate a trial of the issue raised by the application and affidavits for injunction. North Dakota Rev Codes 1905, § 7454; Scott v. District Ct. 15 N.D. 259, 107 N.W. 61.
The satisfaction to come to the court or judge upon such application is not an arbitrary satisfaction dependent upon whim or notion, but a legal satisfaction with the showing made. Bazal v. St. Stanislaus Church, 21 N.D. 602 132 N.W. 212; Stevens v. Ross, 1 Cal. 94.
The power of the court, in such cases, is largely discretionary and will be disturbed only on abuse of such discretion. State ex rel. Security Bank v. Buttz, 21 N.D. 540 131 N.W. 241.
Edward P. Kelly and R. A. Palmeter, for respondent.
Section 7454 is intended to confer upon judges of the district courts certain authority to be exercised at their discretion, and such discretion is not reviewable excepting in cases of abuse. McCann v. Mortgage, Bank & Invest. Co. 3 N.D. 172, 54 N.W. 1026 and cases cited.
Statement
This is an appeal from an order denying an application for an injunction to restrain the foreclosure of a mortgage by advertisement. The facts as disclosed by the affidavit filed with the application for the injunction are that on or about the 24th day of April, 1909, the defendant applied to the Farmers Trust Company, of which T. L. Beiseker is the president, for a loan of five thousand dollars ($ 5,000) and one thousand dollars ($ 1,000) respectively, with interest on the five thousand dollar mortgage at seven and a half (7 1/2) per cent per annum due ten (10) years from date; that "for the convenience of said mortgagee, the said first mortgage for $ 5,000 was made due ten years from said date, with interest at 6 per cent, and the remaining 1 1/2 per cent interest agreed upon on said $ 5,000 mortgage was figured at $ 75 per year, and that the total sum of same or $ 750 for the entire period was added to and incorporated in as the principal of the second mortgage of $ 1,000, making a total of $ 1,750; said $ 750 of same being payable in equal instalments of $ 75 per year."
The defeasance clause of said mortgage was to the effect that if the mortgagor should pay or cause to be paid "the sum of $ 1,793.75 and interest, according to the conditions of thirteen certain promissory notes bearing even date herewith, and also to pay all taxes which are now or may be hereafter assessed on said premises as they shall become due, then this deed to be null and void, but if default shall be made in the payment of said sum of money, or the interest, or the taxes, or any part thereof, at the time and in the manner hereinbefore or hereinafter specified for the payment thereof, the said parties of the first part in such case do hereby authorize and fully empower the said party of the second part . . . to sell the hereby granted premises, and convey the same to the purchaser in fee simple agreeably to the statute in such case made and provided, and out of the moneys arising from such sale to retain the principal and interest which shall then be due upon said land, etc. . . . and if default be made by said parties of the first part in any of the foregoing provisions, it shall be lawful for the said party of the second part . . . to declare the whole sum before specified to be due." The petition further alleged that the plaintiff and respondent was attempting to foreclose the second mortgage, claiming due thereon the sum of $ 3,228.72, inclusive of the entire $ 750 (the 1 1/2 per cent additional interest on the first loan of $ 5,000) while there was really due on said mortgage the sum of $ 2,750, tender of which had been made to plaintiff and respondent; that on the said sum of $ 750 additional interest at 1 1/2 per cent on the first loan but three payments of $ 75 each had been earned and had matured, but in said foreclosure plaintiff and respondent was wrongfully seeking to collect the sum of $ 478.72 in excess of the amount actually due thereon. It was further alleged that said judge declined to make an ex parte order on said application, but did make an order to show cause; that on the return day of said order to show cause, but under objection of defendant and appellant, the said judge received and considered an affidavit of R. A. Palmeter in resistance of said application, and heard the arguments of counsel for plaintiff and respondent in resistance of said application, and, after a full discussion thereof, declined to make said order, but denied same.
Counsel for defendant and appellant urges: (1) That the court erred in refusing to make an ex parte order restraining the foreclosure of the mortgage; (2) that he erred in making an order to show cause; (3) that he erred in receiving and considering the affidavit of R. A. Palmeter in resistance of said application; and (4) that he erred in making the order denying the appellant's application for the injunction and order prayed for.
BRUCE J. (after stating the facts as above). Counsel for appellant is hardly in a position to complain because of the action of the trial court in making an order to show cause and in receiving the affidavit of R. A. Palmeter in resistance to said application. We believe that it was the intention of the legislature that an injunction shall be granted if a defense is set forth in the petition, and that the matters in controversy and the truth of the defense shall be settled and determined upon the trial of an action to foreclose, rather than upon affidavits on an order to show cause. In the case at bar, however, all that the affidavit furnished upon the order to show cause disclosed were the terms and conditions of the mortgage as given in that instrument. The affidavit of R. A. Palmeter did little more in fact than to...
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