A. D. Clarke & Co. v. Doyle
| Decision Date | 22 April 1908 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Morton County; Winchester, J.
Action by A. D. Clarke & Co., against Michael B. Doyle and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
W. H Stutsman, for appellants.
S. L Nuchols, for respondent.
This is an appeal from a judgment of the district court of Morton county, and is here for trial de novo.
After the case was argued and submitted in this court, respondent made a motion to dismiss the appeal in so far as appellant Michael B. Doyle is concerned, upon the ground that said Doyle never authorized such appeal, which motion has been argued and submitted. We deem a decision of this motion unnecessary in view of the conclusion which we have arrived at upon the merits of the appeal, and will therefore refrain from expressing any opinion upon the motion.
Upon the merits we are clearly convinced that the judgment appealed from should be affirmed. The suit was brought to foreclose a certain mortgage upon real property executed and delivered by appellants, Michael B. Doyle and Theresa E. Doyle, to Alexander McKenzie on April 14, 1888, to secure a promissory note for the sum of $ 89.26 and interest at the rate of 12 per cent per annum, payable November 1, 1888. Respondent is the assignee of the note and mortgage. The complaint is in the usual form. The principal defense interposed is that of the statute of limitations; the action not having been commenced until the month of August, 1905. Another defense pleaded in the answer is that in a former action brought by respondent against said Doyle, McKenzie, and others it was adjudged that the defendants in said suit had no interest in the real property covered by the mortgage, which judgment, in so far as the said McKenzie is concerned, is alleged to be in full force and effect, and hence plaintiff, as the assignee of McKenzie, acquired no interest in the note and mortgage aforesaid. The facts were stipulated, and merely questions of law are presented for our determination. In brief, the questions presented are: (1) Is this action barred by the statute of limitations? (2) If not so barred, did the assignment of the note and mortgage by McKenzie to plaintiff vest in the latter such title as authorizes it to maintain this action?
The agreed facts disclose that some time in 1894 the mortgagors M. B. and Theresa Doyle, removed from this state and have ever since resided in Washington, D. C., so that under the law of this state in force prior to July 1, 1905, the cause of action for the foreclosure of such...
To continue reading
Request your trial