Brewer v. Martin

• Decision Date: 02 December 1913
• Docket Number: Case Number: 2956
• Citation: 1913 OK 700,138 P. 166,40 Okla. 350
• Parties: BREWER et al. v. MARTIN.
• Court: Oklahoma Supreme Court

1913 OK 700

138 P. 166

40 Okla. 350

BREWER et al. v. MARTIN.

Case Number: 2956

Supreme Court of Oklahoma

Decided: December 2, 1913

Syllabus

¶0 1. JURY--Right to Jury Trial--Cross-Petition. In a cross- petition for judgment on a note and foreclosure of the mortgage lien, when an issue is joined as to the amount due, the trial must be had before a jury, unless the jury is waived.

2. PLEADING--Verification--Judgment. The defendants, in their answer, having pleaded the execution of the note and the mortgage, and asked for judgment thereon and the foreclosure of said mortgage, and the plaintiff having replied by a denial, without verification, this raises no issue of fact as to the execution of the mortgage and note and the amount due thereon, and judgment should have been rendered in favor of the defendants against the plaintiff for the amount of the note and a foreclosure of the mortgage lien.

W. C. Franklin and P. J. Carey, for plaintiffs in error.

Fred P. Branson, for defendant in error.

WILLIAMS, J.

¶1 The plaintiffs in error will hereinafter be referred to as defendants, and the defendant in error as plaintiff. The plaintiff sought to have a certain deed, alleged to have been executed by him to Maude Mitchell, upon certain premises, adjudged to be a mortgage, and a certain deed, alleged to have been executed by plaintiff to Samul Kinney, and a certain mortgage and mineral lease, alleged to have been executed by him to the defendants, to be canceled. Defendants answered by general denial, and further pleaded affirmatively that on August 10, 1904, the plaintiff executed and delivered to said defendants a certain mortgage to secure the sum of $ 809.95, which was evidenced by a certain promissory note; that, after default, said defendants, under the power of foreclosure contained in said mortgage, which was valid under the laws in force in the Indian Territory at the time of its execution, did proceed to foreclose same, and duly advertised the lands described therein for sale; that said land under said foreclosure was sold to P. J. Carey, and proper conveyance executed to him by the mortgagee; that on November 20, 1909, the said Carey executed and delivered to defendants a quitclaim deed to said land. Defendants further prayed for the possession of said premises under said deed executed as a result of said mortgage foreclosure, but that, in the event the said mortgage foreclosure was defective, then the same be foreclosed, and an accounting be had to determine the amount due on said note. Plaintiff replied, denying that he executed the mortgage or the note, and further denying all affirmative allegations in said answer. In due time defendants demanded a jury trial, which was overruled. Plaintiff's reply was not verified. The court found that the...