Clark v. Baker
| Decision Date | 25 January 1886 |
| Citation | 9 P. 911,6 Mont. 153 |
| Parties | CLARK v. BAKER. |
| Court | Montana Supreme Court |
Appeal from Third district, Lewis and Clarke county.
Shober & Casey and Carter & Clayberg, for appellant.
Bullard & Barbour, for respondent.
This is an appeal from the judgment, and therefore brings before us the judgment roll alone. The only question for our consideration is that presented in the bill of exceptions which is whether or not the appellant, in view of the pleadings, was entitled to a trial by jury. The action was instituted to foreclose a chattel mortgage, and to obtain possession of the property mortgaged, and was consequently so far as the complaint alone was concerned, an action both in equity and in claim and delivery to obtain the possession of the mortgaged property. Section 9, p. 5, Laws Twelfth Sess.; section 346, div. 1, Rev. St.
The complaint set forth the note to secure which the chattel mortgage was given, and was, in substance, as follows: It was dated July 10, 1884, for the sum of $1,224.20, to be paid on or before the first of July, 1885, in monthly installments commencing by the payment of $5 on the first of October 1884, and $100 on the first of each month thereafter, until July, 1885, when the payment was to be the sum of $374.20, which would discharge the note. It provided for payments of interest at the rate of 1 1/2 per cent. per month, payable monthly. The complaint alleged, also, the execution and delivery by the appellant to the respondent of the chattel mortgage which was given to secure the above note, bearing the same date therewith, and conditioned for its payment, and interest thereon at the rate, and at the times, and in the manner, specified in said note, and according to the conditions thereof; that the requirements of the law which entitled the same to be filed, and in relation to filing the same, were duly complied with. A copy of the mortgage, with the indorsements thereon, was annexed to and made a part of the complaint. That, by the terms of the note and mortgage, monthly installments of interest became due as follows: $18.88 on the tenth day of August, 1884, and the same sum on the tenth of September, 1884, no part of which has been paid, and are now due; that by the terms of said chattel mortgage, in case default be made in the payment of the principal or interest as provided in said promissory note, the plaintiff is hereby empowered and authorized to sell the said goods and chattels therein described, with all and every of the appurtenances, or any part thereof, in the manner prescribed by law, and out of the money arising from such sale to retain the said principal and interest, together with the costs and charges of making such sale, including reasonable attorney's fees to be fixed and allowed by the court; also, that in case default be made in the payment of the principal or interest, as provided in said promissory note, or if prior to the maturity of said indebtedness said defendant, the party of the first part thereto, or any other person or persons, shall conceal, make way with, sell, or in any manner dispose of said described property, or any part thereof, or shall attempt so to do, or if the plaintiff, the party of the second part, thereto, should at any time consider the possession of said property, or any part thereof, essential to the security of the payment of said promissory note, then the said plaintiff shall have the right to the immediate possession of said described property, and the whole or any part thereof; that default was made in the payment of interest on the note; that on the twentieth day of September, 1884, the appellant attempted to conceal, make way with, and dispose of the goods and chattels; that the respondent considered the possession of the whole of the property essential to the security of the payment of the note; that the amount due on the note is the sum of $1,224.20 principal, and $42.70 interest; that the respondent is entitled to the possession of the goods and chattels mentioned in the mortgage; that on the sixteenth of September, and before the commencement of the action, the respondent demanded possession of the above goods and chattels; that the appellant withholds and detains the goods and chattels from the possession of respondent; that no proceedings have been had at law or otherwise for the recovery of the sums aforesaid, or any part thereof, and the same is wholly owing and unpaid; that $150 is a reasonable attorney's fee for the foreclosure,--together with the usual prayer in suits for the foreclosure of chattel mortgages. There was also a prayer for the recovery of the possession of said goods and chattels, or for the sum of $1,266.90, together with interest upon the sum of $1,224.20, at the rate of 1 1/2 per cent. per month in case a delivery of said goods and chattels cannot be had.
To this complaint the appellant answered, and the respondent replied. Afterwards, by leave of the court, the appellant filed an amended answer, to which there was no reply. The amended answer took the place of the former answer, and is a substitute therefor, and the former answer will be wholly disregarded. The amended answer admitted the execution of the note and mortgage, but denied that there was anything due thereon at any time before the commencement of the suit, which was on the twenty-sixth of September, 1884, and that nothing became due thereon until October 1, 1884. It denied that there had been any default made before the commencement of the action, but averred that the appellant paid the respondent by boarding him and members of his family, at his special instance and request, between July 1, 1884, and September 20, 1884, amounting to the reasonable...
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