Colorado National Bank of Denver v. Meadow Creek Live Stock Co.
| Decision Date | 29 December 1922 |
| Parties | THE COLORADO NATIONAL BANK OF DENVER, a Corporation, Respondent, v. THE MEADOW CREEK LIVESTOCK COMPANY, a Copartnership Consisting of B. C. MECHAM and H. L. THOMAS, Appellants |
| Court | Idaho Supreme Court |
PLEADING AND PRACTICE-SPECIAL DEMURRER, PLEA OF ANOTHER ACTION PENDING - COUNTERCLAIM - CROSS-ACTION - BILLS AND NOTES - HOLDER IN DUE COURSE-FINDINGS ON IMMATERIAL ISSUES UNNECESSARY-RECEIVER-ATTORNEY FEES.
1. Where it does not appear upon the face of the complaint that another cause of action was pending between the same parties on the same subject matter, a demurrer on that ground should be overruled.
2. Under C. S., secs. 6692 and 6693, an objection that there is another action pending between the same parties for the same cause must be taken by demurrer or answer; otherwise, the objection is deemed to be waived. A motion to dismiss the complaint on that ground, supported by affidavits, is properly denied.
3. A plea in abatement upon the ground that another action was pending between the same parties for the same cause was properly stricken from the answer, where it appears upon the face thereof that the former action is not one between the same parties.
4. C S., sec. 6696, which requires a defendant to set up his counterclaim arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, in default of which neither he nor his assignee can afterward maintain an action against the plaintiff therefor, refers only to such counterclaims as exist in favor of all defendants and against all the plaintiffs in the action. This section has no reference to cross-actions.
5. C S., sec. 6699, which provides that when a defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint, is permissive and not mandatory.
6. The issue formed by the pleading as to whether the plaintiff is a holder of a promissory note in due course is immaterial, where the answer fails to allege any equities or defenses existing in favor of the makers thereof.
7. The law does not require a demand for possession of property covered by a chattel mortgage as a condition to the right of foreclosure by action in a proper court. C. S., sec. 6380 relates only to summary foreclosure of chattel mortgages by notice and sale.
8. In the absence of a binding contract, a mortgagee of personal property is not bound to purchase the same, nor is he bound to consent to the sale thereof by the mortgagor to a third party.
9. A mortgagee of personal property is not required to accept possession thereof unless bound by contract so to do, or unless his failure so to do would prove to be fraudulent.
10. Where a receiver is appointed to take charge of the property covered by the mortgage, in an action for the foreclosure thereof the properly is chargeable with the necessary expense incurred in its preservation and care.
11. In an action for the foreclosure of a mortgage, which provides for reasonable counsel fees, if suit be instituted, an allegation in the complaint, setting out such provision of the mortgage and stating that the sum prayed for is a reasonable amount to be allowed for attorney's fees in the action, is sufficient to support a judgment therefor when supported by proof that the mortgagee has agreed to pay his counsel a stipulated or a reasonable fee for his services and that the sum allowed is a reasonable fee in such an action.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robt. M. Terrell, Judge.
Action for foreclosure of chattel mortgage. Judgment for plaintiff. Affirmed.
Judgment affirmed, with costs to respondent.
Hart & Rich, for Appellants.
Another action is pending when a prior action has been filed which is between the same parties and involves the same subject matter as the present action, and if the defendant in the first action has a claim against the plaintiff in the first action it is the duty of the said defendant to set it up by way of cross-complaint or counterclaim. (Stevens v. Home Savings & Loan Assn., 5 Idaho 741, 51 P. 779; Murphy v. Russell & Co., 8 Idaho 151, 67 P. 427.)
The fact that other parties were joined as parties defendant in the first action is entirely immaterial, as a cross-complaint need relate only to the subject matter of the action, and need not be against all or any of the original parties. (Hunter v. Porter, 10 Idaho 72, 86, 77 P. 434; 1 Standard Proc. 1015; Sutherland, Code Practice & Pleadings, sec. 655.)
Where it is not alleged in the complaint that the plaintiff has engaged an attorney and agreed to pay him the amount of the fee claimed in the complaint, no attorney's fee should be allowed.
It is incumbent upon the respondent to allege and prove that it has agreed to pay the fee, sought to be recovered, to the attorney. (Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; Warren v. Stoddart, 6 Idaho 692, 59 P. 540; Jones v. Stoddart, 8 Idaho 210, 67 P. 650; Porter v. Title Guaranty & Security Co., 17 Idaho 364, 106 P. 299, 27 L. R. A., N. S., 111.)
J. M. Stevens, for Respondent.
In order that an action may be abated by reason of another action pending, the two actions must be identical as to parties, issues and as to the relief sought.
The fact of another action pending not appearing on the face of the complaint, it could only be presented by answer. (Stevens v. Home Savings & Loan Assn., 5 Idaho 741, 51 P. 779; Vance v. Heath, 42 Utah 148, 129 P. 365.)
"The pendency of another action should be set up by demurrer or answer rather than by motion and affidavits." (State ex rel. Puget Sound Nat. Bank etc. v. Superior Court, 14 Wash. 686, 45 P. 670.)
It is not necessary to allege the attorney's fee in the complaint. (Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; Warren v. Stoddart, 6 Idaho 692, 59 P. 540; Jones v. Stoddart, 8 Idaho 210, 67 P. 650; Porter v. Title Guaranty & Security Co., 17 Idaho 364, 106 P. 299, 27 L. R. A., N. S., 111.)
"When it becomes the duty of a court of equity to take property under its own charge, through a receiver, the property becomes chargeable with the necessary expenses incurred in taking care of and saving it." (34 Cyc. 350; Dalliba v. Winschell, 11 Idaho 364, 114 Am. St. 267, 82 P. 107.)
This was an action by respondent for the foreclosure of a chattel mortgage upon certain cattle.
Appellants demurred to the complaint generally and specially upon the ground that there was another action pending between the same parties for the same cause. The complaint stated a cause of action, and it nowhere appeared upon the face thereof that another action was pending involving the same subject matter or between the same parties. The demurrer was properly overruled. (Stevens v. Home Building Loan Assn., 5 Idaho 741, at page 751, 51 P. 779.)
Appellants thereupon moved to dismiss the complaint upon the ground that another cause of action was pending between the same parties involving the same cause, supporting the motion by affidavits. The motion was properly denied. Under C. S., secs. 6692 and 6693, an objection that there is another action pending between the same parties for the same cause must be taken by demurrer or answer; otherwise, the objection is deemed to be waived. (See Vance v. Heath, 42 Utah 148, 129 P. 365.)
Appellants answered, making certain denials, and by way of affirmative defense attempted to plead that another action was pending between the same parties for the same cause. The affirmative defense was by the court, on motion, stricken from the answer. In this the court did not err.
It appeared from the affirmative answer that the former action was not between the same parties. The parties plaintiff were the same as the defendants herein, but the parties defendant included four others besides this respondent. The complaint filed in the former action was annexed to the affirmative answer and made a part thereof. It undertook to state a cause of action for damages growing out of an alleged breach of a contract in connection with which the notes involved in the present action were given. It concluded with a prayer, among other things, that the notes be delivered up for cancelation, but it did not state a cause of action for the rescission of the contract, or facts sufficient to justify a cancelation of the notes. The cause of action in the former case was not the same as that set out in the case at bar. However, appellants claim that the cause at bar arises out of the same subject matter as that involved in the former action, and that if the respondent in this action had a claim against appellants it was its duty to set it up in that action by way of cross-complaint or counterclaim.
They rely on C. S., sec. 6696, which provides: "If the defendant omit to set up a counterclaim in the cases mentioned in the first subdivision of the last section neither he nor his assignee can afterwards maintain an...
To continue reading
Request your trial
-
Snyder v. Blake
... ... not be considered. Colorado Nat. Bank v. Meadow [69 ... Idaho 18] Creek L ... ...
-
Bedwell v. Bedwell, 7431
... ... 14; 1 Am.Jur. 29, ... Sec. 16; Colorado National Bank of Denver v. Meadow Creek ... stock Company, 36 Idaho 509, 211 P. 1076 ... ...
-
CH Elle Construction Co. v. Western Casualty & S. Co.
...one who has not taken advantage of it from asserting the matter later in a separate suit. Colorado National Bank of Denver v. Meadow Creek Livestock Co., 1922, 36 Idaho 509, 211 P. 1076. Even if the rule were otherwise, the record before us fails to disclose that the subject matter which ap......