Caldwell v. Blodgett

• Decision Date: 05 March 1919
• Docket Number: 4997.
• Citation: 256 F. 744
• Parties: CALDWELL v. BLODGETT.
• Court: U.S. Court of Appeals — Eighth Circuit

256 F. 744

CALDWELL v. BLODGETT.

No. 4997.

United States Court of Appeals, Eighth Circuit.

March 5, 1919

W. S Lauder, of Wahpeton, N.D. (T. L. Brouillard, of Ellendale N.D., on the brief), for plaintiff in error.

E. T Conmy, of Fargo, N.D. (Watson, Young & Conmy, of Fargo, N.D on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges.

HOOK Circuit Judge.

Alson Blodgett, Jr., brought an action at law against Ida M. Caldwell, executrix of W. A. Caldwell, deceased, to recover the amount paid the deceased for a note and mortgage upon land in North Dakota, with interest from the time of payment. A jury was waived and the case was tried by the court. The court made special findings of fact and rendered judgment thereon for Blodgett. The executrix prosecuted this writ of error.

At the threshold lies the question of the scope of our power of review. Upon the conclusion of the evidence at the trial the executrix made no motion for a finding, either general or special, in her favor, requested no declaration of law, nor otherwise challenged the legal effect of the evidence. Under such circumstances the sufficiency of the evidence to support the special findings that were made cannot be considered, and all that can be reviewed in an appellate court is whether the special findings, taking them as true, sustain the judgment, and whether during the progress of the trial errors of law occurred to which exceptions were preserved. Section 700, Rev. Stat. (Comp.

St. Sec. 1668); Keeley v. Mining Co., 95 C.C.A. 96, 169 F. 598; Mason v. United States, 135 C.C.A. 315, 219 F. 547.

There are 22 assignments of error in the record. None of them contest the sufficiency of the findings to sustain the judgment, 17 relate to the admission and exclusion of evidence, 2 charge error in making certain findings presumably for insufficiency of proof, and 2 are simply that the court erred in rendering the judgment. The remaining assignment will be discussed presently. The long-established rules of appellate procedure in the courts of the United States prescribe definite requirements as to the character and contents of assignments of error for the record, and also the specifications in the briefs of those that are to be relied on in the appellate court. They have been the subject of very many decisions in this court, other Circuit Courts of Appeals, and the Supreme Court; but it appears that in the case at bar little attempt was made to comply with them. In a liberal view, in the interest of justice, there is but one question presented by an assignment of error that may be consistently considered. It is whether the trial court erred in holding that a judgment in a prior case concluded the executrix as to the matter there decided. A brief outline of the case at bar and the other case, as shown by the pleadings of the parties and the findings of the court before us, is essential to an understanding of the question.

In his lifetime W. A. Caldwell loaned $4,000 to one Hall, and took his note and a mortgage on certain land, represented as belonging to the mortgagor, to secure it. Shortly afterwards Caldwell sold and assigned the note and mortgage to the plaintiff, Blodgett, for the face amount and accrued interest. The mortgage purported to be a first lien on the land, and Hall so covenanted, and also that the land was otherwise free of all incumbrances. The assignment to Blodgett contained a covenant by Caldwell that there was due upon the note and mortgage the full sum mentioned and interest to that time, and that he (Caldwell) had good right and lawful authority to sell and assign them in the manner adopted. By the terms of the assignment, in connection with those of the mortgage, Caldwell expressly warranted to Blodgett that the mortgage sold him was a first lien. There was also an implied warranty to the same effect growing out of the circumstances of the transaction. Furthermore, Caldwell believed he was selling, and Blodgett believed he was buying, a mortgage that was a first and only lien on the land. If it was not of that character the consideration failed.

It afterwards transpired that, about a year before Hall mortgaged the land to Caldwell, he sold it to one Quaschneck and gave him a contract for a deed, which the latter did not record, but under which he took open and exclusive possession of the property. Before discovering the existence of the mortgage Quaschneck paid Hall and those claiming under him nearly all the purchase price. Quaschneck then brought a suit in a state court of North Dakota to cancel the mortgage and quiet his title. The defendants in that suit were Blodgett, plaintiff here, the executrix, defendant here (Caldwell having died), and the trustee of the estate of Hall, who had been adjudged bankrupt. Both Blodgett and the executrix filed answers, putting the averments of Quaschneck's complaint in issue, and participated in the trial. The case resulted in a decree for Quaschneck, quieting his title and expressly declaring the mortgage to be void and of no effect as a lien on the land. The executrix was awarded her costs upon the ground that she asked no affirmative relief. The decree was afterwards affirmed by the Supreme Court of the state. In the present case, brought by Blodgett to recover the amount he paid, with interest, the court below held that the decree of the state court estopped the executrix from questioning the invalidity of the mortgage as a lien. That ruling presents the question here.

In most of the cases in which a warrantor, indemnitor, or person in a similar relation has been held bound by the result of a suit involving a matter upon which his obligation to another depends, he was not a record party to the suit, but was either noticed or called in, or had...