Chiatovich v. Mercer

• Decision Date: 05 January 1925
• Docket Number: 2657.
• Citation: 232 P. 215,48 Nev. 344
• Parties: CHIATOVICH et al. v. MERCER, Sheriff of Esmeralda County, et al.
• Court: Nevada Supreme Court

232 P. 215

48 Nev. 344

CHIATOVICH et al. v. MERCER, Sheriff of Esmeralda County, et al.

No. 2657.

Supreme Court of Nevada

January 5, 1925

Appeal from District Court, Esmeralda County; Emmet Walsh, Judge.

Suit by J. M. Chiatovich and others against W. B. Mercer, Sheriff of Esmeralda County, and another. Judgment on demurrer for defendants, and plaintiffs appeal. Reversed, with directions.

I. S Thompson, of Tonopah (Forman & Forman, of Tonopah, of counsel), for appellants.

H. H Atkinson, of Tonopah, for respondents.

DUCKER C.J.

One of the respondents herein, the W. M. Barnett Bank, a corporation, obtained a judgment against the appellants on a promissory note executed by J. M. Chiatovich on their behalf doing business as the Chiativoch Ranch, and which had been transferred by the payee, H. B. Thornberry, to the respondent bank. The judgment has just been affirmed by this court.

The instant suit was instituted by appellants in the court in which the judgment was obtained, to restrain its enforcement and to obtain a new trial in the former action. Demurrers were interposed by the respondents to the complaint in this suit, on the ground, among others, that it does not state facts sufficient to constitute a cause of action.

The demurrers were sustained, and judgment was entered thereon from which this appeal is taken. The complaint is a lengthy document, and, as many of the facts alleged in the complaint concerning the fraudulent representations of Thornberry in obtaining the suit note, and other notes from the appellants are set out in our opinion in the former action, they need not be restated.

In that action is appeared that prior to its commencement the respondent bank had obtained security for the suit note and others from Thornberry by a second mortgage on his real estate in Sherman county, Or. It is alleged in the complaint in this suit that, after the trial in the former action, and when the defendants therein had moved for a new trial and set up the making of the mortgage as newly discovered evidence, the said bank represented that the mortgage was not security for the suit note, as the full value of the land mortgage would be taken up and consumed by a first mortgage, and other amounts that preceded the mortgage to the bank. It is also alleged, in substance, that the respondent bank has since foreclosed said second mortgage; that the judgment in foreclosure in favor of the bank and against Thornberry amounted to the sum of about $32,665.99 and interest, and included the full amount of the suit note, a $6,000 note given by Thornberry to said bank, and the full amount of ten other notes included in the second mortgage. It is alleged that said real estate has been sold under execution for the sum of $35,339.97, the full amount of the bank's judgment, and covered and satisfied the full amount of the suit note; that the sale was duly and regularly confirmed by a decree of the Oregon court; that said sale on execution for $35,399.97, besides being for the amount of the suit note and interest, and the $6,000 note from Thornberry to the bank, included and satisfied and paid ten other notes transferred by Thornberry to the bank, the full amount of which had been collected from the makers prior to the judgment in foreclosure; that said double collection of said notes by said bank, and the sale of said real estate, is a part of a fraudulent scheme on the part of said bank to defeat the rights of appellants and other creditors of said Thornberry; that said bank in all of said collections was and is the agent of said Thornberry. It is alleged that the said bank's purpose in now pursuing said judgment against said Chiatovichs, and in enforcing the same by execution in the hands of said defendant sheriff, is part of a fraudulent scheme on the part of said bank to assist said H. B. Thornberry in securing the benefit from said Chiatovich judgment. It is alleged that at the time of the former trial, or on the motion for a new trial, or within the time allowed by law, and by stipulation of the parties, to file affidavits of newly discovered evidence in the former case, the appellants in this cause were unable to present the facts set forth above, because they had no knowledge of the suit in foreclosure, nor had execution issued or said sale in foreclosure taken place.

It is alleged that J. M. Chiatovich and W. M....