Brothers v. Ryan Bros. Cattle Co.

• Decision Date: 10 February 1906
• Citation: 33 Mont. 424
• Court: Montana Supreme Court
• Parties: ROSENBAUM BROS. & CO. v. RYAN BROS. CATTLE CO. (FIRST NAT. BANK OF LEAVENWORTH, KAN., Intervener.)

33 Mont. 424

ROSENBAUM BROS. & CO.

v.RYAN BROS. CATTLE CO. (FIRST NAT. BANK OF LEAVENWORTH, KAN., Intervener.)

Supreme Court of Montana.

Feb. 10, 1906.

Appeal from District Court, Yellowstone County; C. H. Loud, Judge.

Action by Rosenbaum Bros. & Co. against Ryan Bros. Cattle Company, in which the First National Bank of Leavenworth, Kan., intervened. From a judgment for plaintiff, intervener appeals. Affirmed.

Blackford & Blackford, for appellant.

W. M. Johnston, for respondent.

HOLLOWAY, J.

On March 19, 1902, Ryan Bros. Cattle Company, a corporation, executed and delivered to the First National Bank of Leavenworth, Kan., its four promissory notes aggregating in amount $115,000, due 120 days after date, with interest at 8 per cent. per annum, and, to secure the payment of the same, executed a certain chattel mortgage upon personal property in Montana. The mortgage or a copy of the same was filed in the respective offices of the county clerks of Fergus, Yellowstone, and Rosebud counties. On July 11, 1902, the president of the First National Bank, mortgagee, executed, and filed in the office of each of said county clerks, what was evidently intended as an affidavit of renewal of the chattel mortgage. That affidavit, which is hereafter referred to as exhibit B, gives the date of the mortgage, the names of mortgagor and mortgagee, the date of the filing of the mortgage, the amount of the debt secured thereby, and contains the necessary declaration of good faith. It also states that the whole amount of principal and interest is unpaid, and that the payment of said indebtedness is extended four months from July 19, 1902. On January 15, 1903, the mortgagee commenced an action in the district court of Fergus county to foreclose the chattel mortgage, and immediately thereafter filed in the office of the respective county clerks of Fergus, Yellowstone, and Rosebud counties a notice of lis pendens. On January 23, 1903, a like action was commenced and a like notice filed in Yellowstone county; and on January 29th like proceedings were had in Rosebud county. On April 24, 1903, Rosenbaum Bros. & Co., a corporation, having commenced an action in the district court of Yellowstone county against Ryan Bros. Cattle Company, the mortgagor above named, caused writs of attachment to be issued in said action and to be levied upon the property described in the mortgage, the levy being made in each of the counties above mentioned, pursuant to the provisions of section 940 of the Code of Civil Procedure. On July 23, 1903, by permission of the district court of Yellowstone county, and by stipulation filed in the case of Rosenbaum Bros. & Co. v. Ryan Bros. Cattle Company, the First National Bank of Leavenworth filed a complaint in intervention, the purpose of which was to have it decreed that the lien of the bank by virtue of its chattel mortgage was prior and superior to the attachment lien of plaintiff, Rosenbaum Bros. & Co. The complaint in intervention recites the history of the execution of the notes, chattel mortgage, and the so-called affidavit of renewal, and the commencement of the actions and the proceedings had therein, as above detailed. Respecting the so-called affidavit of renewal and the extension of the time of the maturity of the debt, the complaint in intervention alleges that: “A. Caldwell, then the president of the said First National Bank of Leavenworth, Kan., this intervener, and for and on behalf of this intervener as mortgagee in the aforesaid chattel mortgage mentioned, for the purpose of carrying out an agreement between the said defendant, the Ryan Bros. Cattle Company, and the said intervener, made an affidavit in writing, pursuant to section 3866 of the Civil Code of the state of Montana, wherein and whereby the said intervener extended the time for the payment of the aforesaid promissory notes, and each of them, four months from the date of the maturity thereof, to wit, four months from the 19th day of July, 1902, and also renewed the said chattel mortgage securing said promissory notes for said time, *** a copy of which said affidavit as aforesaid is hereunto annexed marked exhibit B and made a part of this complaint.” To this complaint in intervention the plaintiff, Rosenbaum Bros. & Co., filed a general demurrer, which was overruled, and then an answer putting in issue practically all the material allegations of the complaint in intervention, and setting forth some affirmative matters which were denied in a reply. In support of its complaint in intervention the intervener offered its evidence, a portion of which was excluded by the trial court, the court thereby practically reversing its former ruling on the general demurrer, and in effect holding that the complaint in intervention does not state facts sufficient to constitute a cause of action; then found the issues for the plaintiff Rosenbaum Bros. & Co., and entered a decree that the intervener take nothing by the action. From this decree and an order overruling its motion for a new trial, the intervener appealed.

It is not contended that the intervener has a lien prior and superior to plaintiff's, unless its action to...