Burns v. Corn Exch. Nat. Bank of Omaha

• Decision Date: 17 November 1925
• Docket Number: 1213
• Citation: 33 Wyo. 474,240 P. 683
• Parties: BURNS v. CORN EXCH. NAT. BANK OF OMAHA. [*]
• Court: Wyoming Supreme Court

240 P. 683

33 Wyo. 474

BURNS v. CORN EXCH. NAT. BANK OF OMAHA. ^[*]

No. 1213

Supreme Court of Wyoming

November 17, 1925

ERROR to District Court, Goshen County; WILLIAM A. RINER, Judge.

Suit by the Corn Exchange National Bank of Omaha, Nebr., against John E. Burns to foreclose a chattel mortgage. There was a decree for plaintiff and defendant brings error.

Affirmed.

J. L Sawyer and Ray E. Lee for plaintiff in error.

The court erred in denying defendant's demand for a jury trial; Const. Art. 1 Section 9; 5725 and 5783 C. S.; there were numerous issues of fact triable to a jury; Rankin vs. Hannan, 37 O. S. 113 Humbeck vs. Van Metre, 9 O. 153; Thomas vs. Westheimer 209 P. 327; Capital Traction Co. vs. Hoj. 43 L. ed. 873; Clark vs. Baker, 6 Mont. 153, 9 P. 911; State Journal vs. Com. 43 Kans. 93, 22 P. 982; the issues as to the execution of the note and mortgage, and amount due for attorney's fees were triable to a jury; Graves vs Burch, 26 Wyo. 102; Wright vs. Douglas 26 Wyo 305; Chochtaw Lmbr. Co. vs. Waldock, 190 P. 866; Collins vs. Industrial Sav. Society, 190 P. 670; the court erred in including the increase of cattle; Gammon vs. Buel, 53 N.W. 340; the chattel mortgage is void since it included property not owned by mortgagor; Biddeford Bank vs. Hill, (Me.) 66 A. 721; Friendly vs. French (Mass.) 28 N.E. 273; and other cases cited; an instrument signed by mistake is void; Jewelry Co. vs. Darnell, 135 N.W. 344; there was no evidence that the loan company is a corporation; Lingle State Bank was a real party in interest; the loan was excessive and therefore not recoverable; 5135 and 5148 C. S.; Waskey vs. Hammer, 223 U.S. 85; McMullen vs. Hoffman, 174 U.S. 639; Wald vs. Wheelon, 147 N.W. 402; the courts will not enforce an illegal contract; Kennedy vs. Lonabaugh, 19 Wyo. 352; plaintiff was not a holder in due course; 8 C. J. 388; the notes were not negotiable; Bank vs. Nolan, 93 P. 508; Bank vs. Heslitt, 113 P. 1152; Mauhard vs. Bank, 165 N.W. 185; Evans vs. Odem, 65 N.E. 755; Sykes vs. Bank, 76 P. 393; 3938 C. S. the notes and mortgage are to be construed together in determining whether notes are negotiable; Roblee vs. Union Stock Yards Bank, 95 N.W. 61; Allan vs. Dunn, 99 N.W. 680; 5143-48 C. S. title of the instrument was defective; Germania Safety Vault Co. vs. Driscoll 66 S.W. 610; 3988-3991 C. S. plaintiff failed to establish title; 3992 C. S. Bank vs. Bank, 24 Wyo. 435; Butterworth vs. Beach, 215 P. 1085.

Reid & More, and Kinkead, Ellery & Henderson for defendant in error.

The record does not show demand for jury trial; 5783 C. S. the point is not reviewable, unless shown by the record; Irrigation Co. vs. Lavalla Ditch Co., 21 Wyo. 204-220; must be preserved by Bill of Exceptions; Perkins vs. McDowell, 3 Wyo. 328-329; Littleton vs. Burgess, 16 Wyo. 58-63; Ryan vs. Snyder, 27 Wyo. 512; Seebull vs. Bank, 5 Wyo. 409; Brandis vs. Grisson, (Ind.) 60 N.E. 485; Baldwin vs. McDonald, 24 Wyo. 108-123; Webol vs. Steinhoff, 25 Wyo. 227-256; defendant was not entitled to a jury; Const. Art. 1, Section 9, merely reserves the right as it stood at common-law; Bank vs. Foster, 9 Wyo. 157; it never existed in courts of equity; no money judgment was sought; 5608-5723 C. S. Kansas, Oklahoma and Ohio have statutes identical with section 5723, and their decisions are in point here; Brigell vs. Creed, (Ohio) 60 N.E. 991; Saladdy vs. Webb, 1 Ohio Cir. Dec. 638; Echols vs. Reeburg, (Okla.) 161 P. 1065; Jackson vs. Levy (Okla.) 183 P. 505-506; Renas vs. Green, (Okla.), 212 P. 755-756; and cases cited. In equity cases juries sit in an advisory capacity; an answer in equity setting up counter claim does not entitle defendant to a jury; Maher & Co. vs. Fernandis (Wash.) 126 P. 542-545; Rymon vs. Lynch (Iowa) 41 N.W. 320; Brusch vs. Boyer, (Kans.) 178 P. 445-446; Ann. Cas 1914 C. p. 852 and note; Gresens vs. Martin (N. D.) 145 N.W. 823; Morrissey vs. Brommal, (Nebr.) 56 N.W. 383; the right to a jury is determined by the cause of action and not by the defense; 24 Cyc. 126-127; the point was not raised in Groves vs. Burch, 26 Wyo. 192; nor in Wright & Co. vs. Douglas, 26 Wyo. 305; other cases cited by plaintiff in error do not seem to be in point; there was no proof that attorney's fees allowed were excessive. The legality of the mortgage and notes was clearly established; Grover vs. Muralt, 137 N.W. 830; excess loans are collectible; 5147 C. S. 9761 U.S.C. S. Union Co. vs. Bank, 96 U.S. 640; Richeson vs. Bank, 132 S.W. 913; Goldstein vs. Bank, (Tex.) 213 S.W. 584; Bank vs. Bank, 282 F. 73; Wold vs. Whellon, (N. D.) 147 N.W. 402; indorsement and transfer of the notes carried the security; Live Stock Co. vs. Ketcham, 48 P. 29-30; Tweto vs. Buran (Minn.) 97 N.W. 128-129; Krocker vs. Burns (Colo.) 56 P. 199-200; Live Stock Co. vs. Bank (Iowa) 145 N.W. 535; Bank vs. Vagg (Mont.) 212 P. 509; when the last endorsement is in blank the instrument is payable to the bearer; 3942 C. S. since there was no defense of notes the question of negotiability is immaterial; Stephens vs. Vermillion (Kans.) 200 P. 277-278; a stipulation without extension of time may be made by agreement between the holder and any endorser and etc., does not render the note non-negotiable; Bank vs. Buttery, (N. D.) 116 N.W. 341; Bank vs. Kinney, (Tex.) 83 S.W. 369; Bank vs. Loukoner (Colo.) 127 P. 947; Bank vs. Kelly, (Okla) 151 P. 1172-1174; Bank vs. Dolsen (Cal.) 126 P. 153; Bank vs. Baldwin (Nebr.) 158 N.W. 371; Brandon on Negotiable Instruments, Sec. 328-390; the contention as to defective title and notes is without merit; Harriman Nat'l Bank vs. Seldomridge, 240 F. 111; Surety Co. vs. Paulley, 170 U.S. 133; no fraud in the inception of the notes was shown; 8 C. J. 213.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This action was commenced on July 22, 1922, by the Corn Exchange National Bank of Omaha, Nebraska, a corporation, plaintiff, against John E. Burns, defendant. The parties will hereinafter be referred to in the same manner as in the court below. The suit was brought for the purpose of foreclosing a chattel mortgage upon certain cattle, horses and crops, executed by said defendant to the Feeders Live Stock Loan Company, a corporation, on December 21, 1921, securing two promissory notes given to the same company, on the same date, each for $ 15,000, payable 180 days after date, and providing for an attorney's fee of ten per cent of the face of said notes. The mortgage and notes were in due time transferred to plaintiff. No personal judgment was asked against the defendant, but plaintiff prayed in its petition that the amount of the indebtedness, including the amount of the attorney's fees, be determined by the court; that the amount found due be declared to be a first lien upon the property described in said mortgage; that said mortgage be foreclosed in the usual manner; that a special master be appointed by the court to make sale of the property and to gather and possess himself thereof for the purpose of sale; that the expenses of suit and the costs and charges of making such sale, and of taking possession and keeping said property be first paid, and that the remainder be applied upon the amount due plaintiff, any balance, if any, to be paid to said defendant.

An answer was duly filed to said petition, which, after denying each and every allegation of the petition, further states, in substance, that if defendant signed said notes and chattel mortgage, he did so unintentionally and without consideration; that he never applied to said Feeders Live Stock Loan Company for any loan and that he never received said sum from said company or from any one else in its behalf; that through one A. L. Richling, cashier of the Lingle State Bank, he applied for a loan from a War Finance Loan Company in the amount of $ 17,300, and that the papers which he signed on December 21st, 1921, were by him supposed to be the papers relating to such a loan from such company; that he is sixty-three years of age, unable to read ordinary typewriting or print without eye glasses and that he did not have such glasses with him at the time he signed the papers aforesaid, and that the notes and mortgage in suit, if signed by him, were obtained by the false and fraudulent representations of said A. L. Richling. Defendant also, in a cross petition, sets forth, in brief, a counterclaim in the sum of $ 50,000 as damages resulting from the unlawful conversion by plaintiff of the personal property described in said mortgage, in that possession thereof was, at plaintiff's request, taken by a receiver, after the filing of the said petition and during the pendency of this action. Defendant accordingly prayed that plaintiff take nothing by reason of its action; that said alleged promissory notes and chattel mortgage be cancelled and held for naught and that defendant have and recover judgment against said plaintiff in the sum of $ 50,000.

Upon application made by plaintiff, a receiver for said property was appointed by the court on August 4, 1922. Said receiver on September 2, 1922, filed a petition in said court, asking that he be permitted to sell the property described in said mortgage, at public or private sale. The parties stipulated, without prejudice to their rights upon the trial of the case, that said receiver might proceed to sell said property and on September 19, 1922, the court, accordingly, directed the sale thereof. The trial of this case, upon the issues joined herein, came on for hearing on December 15, 1922. Defendant asked for a trial by a jury, pursuant to a demand theretofore made in accordance with the statutes. The court refused to grant such request and the trial proceeded without the intervention of a jury. On September 17, 1923, a judgment was entered in...