Ditto v. Edwards

• Decision Date: 16 November 1937
• Docket Number: 44081.
• Citation: 276 N.W. 20,224 Iowa 243
• Parties: DITTO v. EDWARDS et al. (Hunter, Intervener).
• Court: Iowa Supreme Court

276 N.W. 20

224 Iowa 243

DITTO v. EDWARDS et al. (Hunter, Intervener).

No. 44081.

Supreme Court of Iowa.

November 16, 1937

Appeal from District Court, Union County; H. H. Carter, Judge.

Appeal from an order overruling motion for extension of time for redemption from special execution sale in a foreclosure proceeding.

Affirmed.

R Brown, of Creston, for appellant.

J. D Reynolds, of Creston, for appellee C. L. Ditto.

Healey & Reynolds, of Creston, for appellee C. C. Hunter.

RICHARDS, Justice.

In this suit in equity brought by the receiver of the First National Bank of Lorimor to foreclose a mortgage upon real estate owned by defendants Edwards, a decree of foreclosure was entered on January 28, 1935. Under special execution pursuant to the terms of the decree, the sheriff sold the property on March 16, 1936, to the plaintiff receiver. On February 26, 1937, defendants Edwards filed a motion for an extension until March 1, 1939, of the time for redemption from the sale, invoking the provisions with respect to extension of time for redemption that are found in chapter 78 of the Acts of 47th General Assembly. On March 16, 1937, an order was made that the hearing of the motion be had on March 23, 1937, and that all parties plaintiff be duly notified of said time of hearing, and it was further ordered that " the time of redemption in said cause is hereby extended until hearing is had on said motion, and further ordered that no sheriff's deed shall issue until such hearing is had as above ordered." No notice of said motion or of any hearing thereon was at any time served on any of the parties plaintiff or on any other person. On March 22, 1937, one C. C. Hunter filed a petition of intervention, praying that the motion of defendants be overruled and that the court order issuance of a sheriff's deed to the intervener as the holder and assignee of the certificate of purchase at the special execution sale. Intervener alleged that he had purchased said certificate from plaintiff and had had same recorded on February 26, 1937, in the office of the county recorder. As grounds for the relief prayed by intervener he alleged that defendants Edwards had attempted to extend the period of redemption by filing their motion, but had failed to have the court, by order within the time provided by law, prescribe the time, place, and notice of hearing on the motion, and had failed to procure the service of said notice on plaintiff or on intervener. On April 5, 1937, upon hearing upon the motion and petition of intervention, the district court entered order denying defendants' motion. The question on this appeal taken by defendants is whether the motion should have been sustained.

We will first discuss the intervener's contention that defendants failed in their attempt to procure an extension of the period of redemption, because they at no time served on the parties plaintiff or on intervener any notice of their motion or of any hearing thereon.

Above-mentioned chapter 78 of the Acts of 47th General Assembly recites that it has been determined by the 47th General Assembly that the need for continuing and extending the time to which the period of redemption may be applied for and extended is as great as it was at the time of enactment of chapter 179, Acts of the 45th General Assembly, and chapter 110, Acts of the 46th General Assembly. In a succeeding portion of said chapter 78 is found the following relevant portion of section 2, which we quote:

" Sec. 2. In all foreclosure actions in which order has been entered extending the period of redemption to March 1, 1937, as provided by chapter 110 of the acts of the Forty-sixth General Assembly, and in all foreclosure actions on mortgages and deeds of trust executed prior to January 1, 1936, in which decrees have been entered but the period of redemption has not expired, the court shall, unless upon hearing upon said application good cause is shown to the contrary, or said application is found not to have been made in good faith, order that no sheriff's deed shall be issued until March 1, 1939, and in the meantime said owner or owners may redeem such property, and are entitled to possession thereof."

The corresponding section of chapter 179 of the Acts of the 45th General Assembly, so far as relevant, is as follows: " Section 1. In any action, for a real estate foreclosure of a mortgage or a deed of trust, which has been commenced in any of the courts, and in which a decree has been or may hereafter be entered, but the redemption period, as now provided, has not expired, upon application of the owner or owners of such real estate, the court shall, unless upon hearing upon said application good cause is shown to the contrary, order that no sheriff's deed shall be issued until March 1, 1935, and in the meantime the such owner or owners may redeem such property, and are entitled to possession thereof."

The corresponding section of chapter 110 of the Acts of the 46th General Assembly, so far as relevant, is as follows: " Sec. 2. In any action, for the foreclosure of a real estate mortgage or a deed of trust, which has been commenced prior to March 1, 1935, in any of the courts, and in which a decree has been or may hereafter be entered, but the redemption period, as now provided, has not expired, upon application of the owner or owners of such real estate, the court shall, unless upon hearing upon said application good cause is shown to the contrary, order that no sheriff's deed shall be issued until March 1, 1937, and in the meantime said owner or owners may redeem such property, and are entitled to possession thereof."

The foregoing portions of Acts of the 45th and 46th General Assembly are set out because it is urged by intervener that the soundness of the contention of intervener, now being discussed, has already been established and affirmed in cases involving said acts of the 45th and 46th General Assembly, intervener claiming that the determinative features of these earlier acts on which the cases are based are found in chapter 78 of the 47th General Assembly. The cases so relied on by intervener are Mohns v. Kasperbauer, 220 Iowa 1168, 263 N.W. 833, and Iowa-Des Moines Nat. Bank & Trust Co. v. Alta Casa Inv. Co. (Iowa) 269 N.W. 798.

In Mohns v. Kasperbauer, 220 Iowa 1168, 263 N.W. 833, application was filed on October 16, 1934, asking an extension of period of redemption pursuant to the provisions of chapter 179 of the Acts of the 45th General Assembly. The one-year period for redemption provided by Code, §§ 12376 and 11774, would not have expired until December 6, 1934. No notice was served after the filing of said application, and nothing was done thereunder. In holding that under this state of facts the district court erred in granting the application under authority of chapter 179, Acts 45th General Assembly, the opinion by Mr. Justice Albert states the following:

" It will be noticed that under this section of the moratorium statute the court cannot enter the order therein provided except upon hearing, and this necessarily carries with it the idea that the opposing party is entitled to a notice of such hearing before the court would have jurisdiction to enter the order. There is no showing in this case that any such notice was given of the hearing on the first application for the rights of the defendants under this section. The mere filing of the application without notice of hearing avails the applicants nothing. In order to get the benefit of this section of the statute, there must be an order made by the court as therein provided, and until that is done the statute has no operation. As applied to the situation before us, the time for the issuance of the sheriff's deed, or the expiration of the period of redemption, was on the 6th day of December, 1934. There having been no order made by the court, under the above-quoted section, after that date, the applicant was not entitled to redeem, because the time for redemption had expired."

In Iowa-Des Moines Nat. Bank v. Alta Casa Inv. Co (Iowa) 269 N.W. 798, 800, a real estate mortgage foreclosure case, the period of redemption provided by above sections 12376 and 11774 expired on March 2, 1936. On that day defendant owners filed application for extension of period of redemption under the provisions of chapter 110 of the Acts of the 46th General Assembly. On that day no order of court was entered nor notice given to plaintiffs. On the following day, March 3, 1936, the court entered an order fixing March 7, 1936, as the time for hearing the application, and on the same day defen...