Burlington Savings Bank v. Grayson

• Decision Date: 23 February 1927
• Citation: 254 P. 215,43 Idaho 654
• Parties: BURLINGTON SAVINGS BANK, Respondent, v. CARL M. GRAYSON and EMILY GRAYSON, Husband and Wife, CHARLES W. WILSON, BLAINE COUNTY NATIONAL BANK, THOS.D. PERRY, WOOD RIVER LAND COMPANY, R. B. MERRILL, Defendants, and NEIL CAMPBELL, Appellant; RENASSELAER L. CURTIS, Substituted for JOHN B. CUNNINGHAM, Deceased, Receiver, OVERLAND NATIONAL BANK, Intervenor
• Court: Idaho Supreme Court

254 P. 215

43 Idaho 654

BURLINGTON SAVINGS BANK, Respondent, v. CARL M. GRAYSON and EMILY GRAYSON, Husband and Wife, CHARLES W. WILSON, BLAINE COUNTY NATIONAL BANK, THOS.D. PERRY, WOOD RIVER LAND COMPANY, R. B. MERRILL, Defendants, and NEIL CAMPBELL, Appellant; RENASSELAER L. CURTIS, Substituted for JOHN B. CUNNINGHAM, Deceased, Receiver, OVERLAND NATIONAL BANK, Intervenor

Supreme Court of Idaho

February 23, 1927

GRANTING OF CONTINUANCE PROPER-ADMISSION OF INCOMPETENT EVIDENCE NOT PREJUDICIAL-FOREIGN CORPORATION HELD NOT "DOING BUSINESS" IN STATE.

1. Granting of continuance to enable party to take depositions is in discretion of trial court, and will not be disturbed in absence of showing of abuse thereof, no prejudice being shown to have been caused thereby.

2. Admission in a case tried by the court without a jury of incompetent evidence was not prejudicial, there having been sufficient competent evidence to sustain the findings, and it being presumed that the court did not consider the incompetent evidence in making up its findings, the contrary not appearing.

3. Foreign corporation by buying at its home place mortgage on land in Idaho or at such home place making loan direct on mortgage of Idaho land is not doing business in Idaho requiring its compliance with laws of Idaho as to foreign corporations, though before making the purchases or loans it had agents examine the lands.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action to foreclose mortgage. Judgment for plaintiff. Affirmed.

Judgment affirmed and costs awarded to respondent.

J. J McFadden, Proctor K. Perkins and Sullivan, Sullivan & Van Winkle, for Appellant.

Continuance can only be obtained by proper showing. (C. S., sec. 6840; Kerney v. Haifield, 30 Idaho 90, 162 P. 1077.)

The respondent cannot enforce its mortgage. (Const., art. 11, sec. 10; C. S., secs. 4772, 4773 and 4775; Katz v. Herrick, 12 Idaho 1, 86 P. 873; Bonham Nat. Bank v. Grimes Pass Placer Min. Co., 18 Idaho 629, 111 P. 1078; War Eagle Con. Min. Co. v. Dickie, 14 Idaho 534, 90 P. 1034; John Deere Plow Co. v. Wyland, 69 Kan. 255, 2 Ann. Cas. 304, 76 P. 863; Farrior v. New England M. S. Co., 88 Ala. 275, 7 So. 200; Chattanooga National Bldg. Assn. v. Denson, 189 U.S. 408, 23 S.Ct. 630, 47 L.Ed. 870; Dundee M. T. & I. Co. v. Nixon, 95 Ala. 318, 10 So. 311; Christian v. American Freehold L. & M. Co., 89 Ala. 198, 7 So. 427; State v. Bristol Sav. Bank, 108 Ala. 3, 54 Am. St. 141, 18 So. 533; Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L. R. A. 543; Florsheim Bros. Co. v. Lester, 60 Ark. 120, 46 Am. St. 162, 29 S.W. 34, 27 L. R. A. 505; People v. Horn Silver Min. Co., 105 N.Y. 76, 11 N.E. 155; Tarr v. Western Loan & S. Co., 15 Idaho 741, 99 P. 1049, 21 L. R. A., N. S., 707; Hoffstater v. Jewell, 33 Idaho 439, 196 P. 194.)

J. G. Hedrick and Oppenheim & Lampert, for Respondent.

The continuance of the case by the lower court for the taking of additional evidence by deposition was within the discretion of the court.(Curtis v. Underwood, 101 Cal. 661, 36 P. 110; 5 Cal. Jur. 968-970.)

Where a note and mortgage securing the same on real estate in Idaho are executed by an Idaho maker to an Idaho payee and by the latter sold in Vermont to a banking corporation of that state, the sale is an interstate transaction and the law of this state governing foreign corporations does apply. (Bonham Nat. Bank v. Grimes Placer Co., 18 Idaho 629, 111 P. 1078; Diamond Bank v. Van Meter, 19 Idaho 225, 113 P. 97; Largilliere Co. v. McConkie, 36 Idaho 229, 210 P. 207.)

When a contract or agreement sued upon by a foreign corporation is an interstate transaction, the question as to whether it was doing other business within the state is not material. (Bettilyon Home Builders Co. v. Philbrick, 31 Idaho 724, 175 P. 958.)

GIVENS, J. Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

The respondent is a corporation organized under the laws of Vermont for the purpose of loaning money on real estate mortgages and had not at the time the loan in question was made and assigned complied with the laws of Idaho governing foreign corporations doing business in the state.

September 1, 1919, the Graysons gave their note and mortgage covering land in Idaho payable to Charles W. Wilson at Bellevue, Idaho, which mortgage was later assigned to the respondent. October 3, 1919, Graysons executed their two notes and mortgages covering the same land to Neil Campbell. The present action was for the foreclosure of the first mortgage assigned to respondent.

Neil Campbell is the only appellant and evidently the only party adverse to respondent remaining in the case whose interests need be considered. The lower court foreclosed the mortgage in favor of respondent on the theory that respondent had not been doing business in this state. Appellant urges that the lower court erred in this respect and also in ruling on the admission of evidence and because the case was continued to permit respondent to take the depositions of certain officers of respondent bank.

No prejudice was shown to have been caused by the continuance and the action of the trial court in that respect being discretionary will not be disturbed in the absence of a showing of abuse thereof. (Berlin Machine Works v. Dehlbom Lum. Co., 32 Idaho 566, 186 P. 513; De Puy v. Peebles, 24 Idaho 550, 135 P. 264; Storer v. Heitfeld, 17 Idaho 113. 105 P. 55.)

No prejudicial error was committed in admitting the testimony of C. P. Smith and F. W. Perry, to which objection was made, because where an action is tried by the court without the intervention of a jury and incompetent evidence is conditionally received (which was the case herein), this court will presume that the trial court did not consider such evidence in making up its findings unless the contrary is made to appear (Brinton v. Johnson, 41 Idaho 583, 240 P. 859), and there was sufficient evidence aside from the testimony to which objection was made to sustain the findings in connection therewith. (Bales v. Weaver, 36 Idaho 704, at 709, 213 P. 342.)

Appellant urges that there were a number of other transactions of a similar nature wherein loans were made by the Blaine County National Bank or its officers in Idaho and the notes subsequently sold to respondent; also that because certain officers of respondent examined the land covered by the mortgages in question and stated in Idaho that they approved the security and said they would recommend the loan, the respondent was doing business within the state. Our latest expression upon this subject is Portland Cattle Loan Co. v. Hansen Livestock & F. Co., ante, p. 343, 251 P. 1051, wherein it was held that soliciting loans and taking applications for loans by agents of a foreign corporation and forwarding the same to the home office of such corporation, there to be approved or disapproved by the home office, did not constitute doing business within the state, and concluding that at most there was a conflict in the evidence as to whether the particular transaction therein involved was consummated in Utah or Oregon, Oregon being the home state of the foreign corporation.

In the case at bar the only evidence with regard to where the loan in question was purchased by respondent was to the effect that it was in Vermont. The note, mortgage, application and abstract were sent by the Blaine County National Bank to respondent in Vermont; the loan was approved and accepted there and the money was sent from Vermont through regular banking channels and eventually passed to the credit of the Blaine County National Bank at one of its correspondent banks. There was no testimony that the parties who made this loan or any of the loans which the respondent purchased were acting as agents for respondent. In all instances, save two or three, the other loans referred to were first made by the bank in Idaho and subsequently sold to respondent. In one or two instances, at the most three, loans were made direct between respondent in Vermont and residents of the state of Idaho, but even those transactions depended for their approval upon action in Vermont. Respondent had no money in Idaho, it had no place of business in Idaho and it had no agent in Idaho who had authority to bind respondent or to accept a loan on its behalf.

"It is true that it was a part of the business of the plaintiff corporation to discount notes of this character, and that it...