Collins v. Brown

• Decision Date: 20 February 1911
• Citation: 114 P. 671,19 Idaho 360
• Parties: ORVILLE M. COLLINS, Appellant, v. WILBUR R. BROWN et al., Respondents
• Court: Idaho Supreme Court

114 P. 671

19 Idaho 360

ORVILLE M. COLLINS, Appellant, v. WILBUR R. BROWN et al., Respondents

Supreme Court of Idaho

February 20, 1911

PLEADING - SERVICE OF CROSS-COMPLAINT - CONFLICTING EVIDENCE - CORRECTION OF MORTGAGE.

(Syllabus by the court.)

1. Where one of several defendants has filed an answer and a codefendant desires to adopt the same answer, he may do so by filing an answer in which he states that he joins in the answer of his codefendant and desires to make the same a part of his answer as fully as if set out in full and in detail in his own pleading.

2. Where a defendant files a cross-complaint and all the parties to be affected thereby have appeared in the main action and are represented by counsel, it is a sufficient service of such cross-complaint to serve the same upon the attorneys who have appeared for the respective parties affected thereby.

3. Evidence examined with reference to the genuineness and execution of a certain instrument, and held, that it is sufficient to support the findings of the trial court.

4. Evidence examined as to the interest retained by a mortgagor in crops to be grown, and held, that the same is sufficient to support the findings of the trial court, and that the statute, sec. 3406, Rev. Codes, authorizes and justifies the conclusion of law drawn by the trial court to the effect that the crop was liable in the hands of a third party to the extent of the interest retained therein by the mortgagor.

5. Where the evidence shows that the true and correct description of a tract of land was in "township 37 north of range 5, W. B. M.," and by mutual mistake and clerical error the description was written "township 37 north of range 5, E. B. M.," and the true description of the land intended to be described is known to all the parties affected by the action, it was proper for the trial court to correct the description to conform to the true purpose and intention of the parties.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

Action by plaintiff to foreclose a chattel mortgage. Cross-action by one of the defendants to foreclose a chattel mortgage. Judgment in part for the plaintiff and in part for the defendants, from which both parties appeal. Affirmed.

Judgment affirmed, and the entire costs of both appeals divided equally between the appellant Collins on the one side and the cross-appellants Driscoll and Troutman on the other. Petition for rehearing denied.

Eugene O'Neill, for Appellant.

The personal service of the cross-complaint is the method directed by the legislature for acquiring jurisdiction to prosecute the cross-complaint as against a cross-defendant. Without this personal service the cross-plaintiff had no jurisdiction as to his mortgage foreclosure against the plaintiff Collins' mortgage. (Rev. Codes, sec. 4188; White v. Patton, 87 Cal. 151, 25 P. 270; 5 Ency. Pl & Pr. 683; Fitnam's Trial Procedure, sec. 252.)

The reformation of the mortgage is merely a matter of right as between the parties and those having knowledge of the land intended to be described. All parties to this transaction knew what land was meant, and there was a perfect right of reformation in this case. (24 Am. & Eng. Ency. of Law, 2d ed., 654, 655; Parish v. Camplin, 139 Ind. 1, 37 N.E. 607; Perkins v. Canine, 113 Mich. 72, 71 N.W 457; Christensen v. Hollingsworth, 6 Idaho 87, 91, 96 Am. St 256, 53 P. 211.)

George W. Tannahill, for Respondents.

The class of cases in which personal service is required is radically different from the case at bar, and service of a cross-complaint is not a case that would require personal service upon a party who had duly appeared in the action. Service on the attorney in cases of this kind was not only proper and admissible, but the only service that should have been made. (Sec. 1015, Cal. Code Civ. Proc.; sec. 4893, Rev. Codes of Idaho; Matthews v. Superior Court, 70 Cal. 527, 11 P. 665; Silva v. Serpa, 86 Cal. 241, 24 P. 1013, Lacosta v. Eastland, 117 Cal. 673, 49 P. 1046; In re Nelson's Estate, 128 Cal. 242, 60 P. 772.)

The sum of $ 1,171.63 was ordered and directed to be paid to plaintiff Orville M. Collins from the moneys in the hands of the receiver, the proceeds of the sale of two-thirds of John Troutman's 1909 grain crop placed in said receiver's hands, the other one-third of the crop having been delivered to the appellant and accepted by him as rental of the land in question. This cross-appellant appeals from such portion of such judgment and decree on the grounds that the same is contrary to law and unsupported by the evidence.

Assuming for the purpose of this argument the plaintiff might have some latent right to demand that this money be applied in part satisfaction of the mortgage debt, by his own actions he must be deemed to have waived any such right. (7 Cur. Law. 1227, 1228, 1229; Watson v. Perkins, 88 Miss. 64, 40 So. 643; Pederson v. Christofferson, 97 Minn. 491, 106 N.W. 958.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

The motion by cross-appellants to dismiss the appeal is not well taken, and is therefore denied.

In this case the plaintiff, Orville M. Collins, has appealed from the judgment, and the defendants, T. Driscoll and John Troutman, have also appealed.

This action was commenced by the appellant for the foreclosure of a chattel mortgage executed in favor of appellant by Wilbur R. Brown and Leonard L. Brown, two of the respondents herein. The defendant Driscoll filed a cross-complaint for the foreclosure of a chattel mortgage executed against the same property by defendant Troutman. These mortgages were executed on growing crops.

In the very inception of the case, two questions of practice were presented to the trial court and are preserved and argued here. The defendant Troutman answered at length, making specific denials and traversing the allegations of the complaint at length. The defendant Driscoll thereafter filed a verified answer as follows: "Comes now the defendant herein, T. Driscoll, and for his answer to the plaintiffs' second amended complaint on file herein, joins in the answer of John Troutman heretofore served and filed herein, and makes the same a part hereof as fully as if here set out and asks the court to be permitted to join in said answer." This answer was followed with a prayer for relief and was duly verified. It does not appear that any order was made by the court with reference to this answer at all. The plaintiff raises the point that a codefendant cannot answer a complaint in this way where the complaint is such that it requires specific denials. We do not think the point is well taken. Our practice is cumbersome enough as it is without inviting any additional burdens. It is self-evident that a defendant who will file a verified answer in the form of the answer made by Driscoll will, if required to do so, make specific denials as required of defendants generally. Where a codefendant has filed his answer and another defendant wishes to answer to the same effect and to adopt the answer of his codefendant, we know of no statute or rule of law which would prevent him doing so in the form and manner adopted by Driscoll in this case, and we can see no injury that might result to anyone from such a practice.

The cross-complaint filed by Driscoll was served on the attorneys for the parties affected thereby, and was not served on the individuals in the manner in which service of process is made when an action is originally commenced. Appellant raises the question that under the provisions of sec. 4188, Rev. Codes, a cross-complaint must be served upon the parties instead of upon their attorneys, and that they are entitled to the statutory time thereafter in which to answer, the same as upon the service of summons. Sec. 4188 provides that, "The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint." There can be no question about the correctness of appellant's position with reference to the service of a cross-complaint and the time for appearance as against a party who has not appeared in the original action or who was not a party to the original action, but a different rule should prevail as to all parties to the action who have appeared in the case. By the provisions of sec. 4889, where a party has appeared in the action by attorney, the service of notices and other papers thereafter requiring service in the same case may be made upon the attorney, and sec. 4893 provides that, where a party resides out of the state and has appeared in an action and has no attorney resident of the state, the service may be made on the clerk for him. Where the parties to be served by cross-complaint are already in court, there can certainly be no valid objection to the service of the cross-complaint on their attorneys instead of upon the parties personally.

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