Brown v. Lincoln Joint Stock Land Bank of Lincoln, Neb.

• Citation: 265 N.W. 115,221 Iowa 42
• Decision Date: 13 February 1936
• Docket Number: 43282.
• Parties: BROWN v. LINCOLN JOINT STOCK LAND BANK OF LINCOLN, NEB.[a1]
• Court: United States State Supreme Court of Iowa

265 N.W. 115

221 Iowa 42

BROWN v. LINCOLN JOINT STOCK LAND BANK OF LINCOLN, NEB.^[a1]

No. 43282.

Supreme Court of Iowa.

February 13, 1936

Appeal from District Court, Warren County; Norman R. Hays, Judge.

This is a separate action in equity to secure an extension of the period of redemption in a real estate mortgage foreclosure case between the same parties. Included in the relief prayed for is an injunction restraining defendant from procuring a writ of possession in the foreclosure case. An application for such a temporary writ of injunction made before issues were joined was denied by the trial court. Plaintiff appeals.

Affirmed.

See also, 258 N.W. 770.

C. H Miller, Comfort & Comfort, and Holly & Holly, all of Des Moines, for appellant.

Henderson & Wilson, of Indianola, for appellee.

POWERS, Justice.

Plaintiff in this action is the defendant in a mortgage foreclosure suit between the same parties in the same court. The petition alleges that a sheriff's deed was issued in the foreclosure suit March 15, 1934; that two applications had been filed in that suit for an extension of the period of redemption and denied. The instant case asserts that because of the fraud and misrepresentations of the defendant and the reliance of the plaintiff thereon, the plaintiff, as defendant in the foreclosure suit, was placed in a position where he could not bring himself within the terms and conditions of the statute authorizing an extension of the period of redemption. The petition prays that an extension of the period of redemption be granted, and that the defendant be restrained from seeking a writ of possession in the foreclosure case, and for general equitable relief.

The defendant filed a motion to dismiss this petition on the ground that the facts pleaded do not entitle the plaintiff to the relief demanded. The defendant in this case, as plaintiff in the foreclosure case, filed in the foreclosure case an application for a writ of possession. A resistance was filed on all the grounds which plaintiff alleges in his petition in this case. The petition in this case was presented to the court with a request for a temporary writ of injunction restraining the defendant, as plaintiff in the foreclosure case, from seeking a writ of possession in the foreclosure case at the same time that the application in the foreclosure case for a writ of possession was presented. The court ordered the writ of possession issued in the foreclosure case, and refused the temporary injunction in the instant case. It is from this action of the court in refusing a temporary injunction that this appeal is taken. The motion to dismiss the petition has never been submitted.

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