City Nat. Bank v. Riggs

• Decision Date: 23 April 1934
• Docket Number: No. 4-3451.,4-3451.
• Court: Arkansas Supreme Court
• Parties: CITY NAT. BANK et al. v. RIGGS et al.

70 S.W.2d 574

CITY NAT. BANK et al. v. RIGGS et al.

No. 4-3451.

Supreme Court of Arkansas.

April 23, 1934.

Appeal from Sebastian Chancery Court, Fort Smith District; C. M. Wofford, Chancellor.

Suit by A. J. Riggs and others against the City National Bank and others. Decree for plaintiffs, and defendants appeal.

Affirmed.

James B. McDonough, of Fort Smith, for appellants.

Hill, Fitzhugh & Brizzolara, of Fort Smith, Watts & Wall, of Sallisaw, Okl., and Daily & Woods and G. L. Grant, all of Fort Smith, for appellees.

McHANEY, Justice.

This is the second appeal of this case. For the former opinion, see City National Bank v. Riggs, 66 S.W.(2d) 293. On the former appeal we held that the appellants had wrongfully satisfied the record as to certain property covered by a mortgage to it as agent to secure an indebtedness to appellees and others represented by notes which had been assigned by it, and that appellants became liable to the note holders for their pro rata share of the sale price of the property so released from the record of said mortgage; that the inclusion of the homestead of appellee Jessie M. Johnson in the new mortgage was induced by fraud and that appellants became liable to her for whatever loss she might sustain in the foreclosure and sale thereof; and that the decree of the chancery court should be affirmed.

This proceeding involves the foreclosure of the new mortgage. The court entered a decree in accordance with the prayer of the complaint.

For a reversal of this decree it is first argued by appellants that the court should have granted a continuance on their motion. There are several answers to this suggestion. One is that the makers of the notes and mortgage have not requested a continuance. Another is that matters of continuance rest in the sound discretion of the court, which will not be disturbed by this court unless an abuse of discretion is shown. The record discloses that one continuance was granted, from the April to the October term, 1933, and no abuse of discretion is shown.

It is next argued that since the City National Bank, hereinafter called the Bank, purchased the two notes held by E. N. King, the Bank should be subrogated to all the rights of King as against Mrs. Johnson's homestead which we held, on the former appeal, was included in the new mortgage through misrepresentation and fraud of the officers of the Bank. The court gave the Bank a judgment against the Johnsons on the King notes, but refused to permit it to participate in the security as to said homestead. This was manifestly correct. The...