Echols v. Reeburgh
| Decision Date | 19 December 1916 |
| Docket Number | 7472. |
| Citation | 161 P. 1065,62 Okla. 67,1916 OK 1039 |
| Parties | ECHOLS ET AL. v. REEBURGH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Suit to foreclose a real estate mortgage may be maintained without seeking personal judgment for the mortgage indebtedness.
In an action for foreclosure, where a defendant against whom no money judgment is sought by cross-petition sets up lack of understanding and incompetency in the maker of the note and mortgage, and upon that ground seeks the affirmative relief of cancellation of the note and mortgage, under the authority of the decision of this court in Maas et al. v Dunmyer, 21 Okl. 434, 96 P. 591, and of Hartsog v Berry, 45 Okl. 277, 145 P. 328, such defendant is not entitled to a jury trial upon the issue of the lack of understanding of such maker.
In an equity case, where the judgment of the trial court is not against the weight of the evidence, it will be sustained. Record examined, and held, that the judgment of the lower court is sustained by the weight of the evidence except as indicated.
Service of summons upon an infant cannot be waived; no one can appear for him in defense of an action prior to such service of summons; the defense of an infant must be made by guardian ad litem, who cannot be appointed until after such service of summons; and a judgment rendered against a minor defendant without service of summons and appointment of guardian ad litem is void; but, where minor defendants are not necessary parties, and the judgment is properly rendered as to all necessary parties, it will be sustained as to such parties against whom it is so properly rendered.
Record examined, and held, that the judgment was improperly rendered as to certain minor defendants and in so far as money liability was adjudicated against adult defendants in foreclosure, but, the judgment being properly entered as against such adult defendants for foreclosure of mortgage the judgment is reversed, and the cause remanded, with directions to the trial court to enter judgment in accordance with this opinion.
Commissioners' Opinion, Division No. 3. Error from District Court, Greer County; Will Linn, Judge.
Action by S. P. Reeburgh against R. C. Echols, Jr., and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.
W. W. Noffsinger and Y. P. Broome, both of Muskogee, and Frank O. Eagin, of Mangum, for plaintiffs in error.
H. D. Henry, of Mangum, for defendant in error.
Upon March 19, 1909, to secure the payment of his promissory note of the same date in the sum of $1,116, one R. C. Echols executed to one G. C. Keeling his two mortgages covering the following described property, to wit: Lot 7 in block 19 of the original town of Mangum, Okl., and lots 39, 40, 41, and 42 in block 7, Irvington addition to the city of Oklahoma City, Okl. Such note was given in payment of another note upon which the said R. C. Echols was surety. The note and mortgages of March 19, 1909, were assigned by Keeling to S. P. Reeburgh.
This action was brought by Reeburgh against R. C. Echols, Jr., Ima Echols, Ora May Echols, and Sallie S. Echols, heirs of R. C. Echols, deceased, and Sallie S. Echols, G. C. Keeling, and J. A. Springer, and Sallie S. Echols, as natural guardian of R. C. Echols, Jr., Ima Echols and Ora May Echols, minor heirs of R. C. Echols, deceased, for foreclosure of the said real estate mortgages, and to recover a money judgment as against the said G. C. Keeling, indorser of the said note. Service of summons does not appear to have been had upon the said Keeling, nor upon either of said minors, R. C. Echols, Jr., Ima Echols, and Ora May Echols; and no guardian ad litem was appointed for the said minors. Keeling did not appear in the action; but the other defendants, including the minors, purported to enter a general appearance and defend the action.
The appearing defendants generally denied the allegations of the petition, including the execution of the note and mortgages, and set up that at the time of the purported execution of such instruments the maker, R. C. Echols, was ill in a hospital in Oklahoma City as a result of a serious surgical operation, from the effects of which illness he later died, and that at the time of the purported execution of such instruments, as a result of such illness, the said R. C. Echols was in a semiconscious condition, suffering with intense pain, was unable to and did not understand the nature and effect of the instruments, and was incapable of transacting or understanding any business transaction, and that the said note and mortgages were knowingly and fraudulently obtained from the said R. C. Echols while he was in such condition, and were without any consideration; and, based upon these allegations, the answer of said appearing defendants asked for the cancellation of the said note and mortgages, the latter as a cloud upon the real estate, and for such other and further relief as might have seemed equitable and just in the premises. While this pleading was denominated as an answer, it asked for affirmative relief, and in fact was an answer and cross-petition. Such answer and cross-petition alleged that the party obtaining the execution of the note and mortgage on behalf of the payee and mortgagee was the agent of plaintiff in this cause, and in fact acting for plaintiff and with his full knowledge.
The answer and cross-petition was not verified, and there was no evidence tending to controvert the execution of the note and mortgages; therefore that question does not enter into the appeal. The reply was an unverified general denial, thus not controverting the allegation that the taker of the instruments was the agent of plaintiff, and there was no evidence upon that point; and therefore the question of innocent third party is not in the appeal. Also these questions are not presented by the briefs of the parties.
At the trial plaintiff rested after the introduction of the note and mortgages, whereupon the defendants introduced their evidence tending to sustain the allegations of the answer and cross-petition as to the incompetency of R. C. Echols at the time of the execution of the instruments in question. There was no evidence of fraud or lack of consideration, but it appeared that the note and mortgages in question were executed in payment of the surety note hereinabove mentioned. At the conclusion of the evidence of defendants, on motion of the plaintiff, the court directed the jury to render a verdict in favor of plaintiff.
Upon the directed verdict the court rendered judgment for plaintiff against "R. C. Echols et al." for the sum of $1,943.70, being principal of the note, interest and attorney's fees, and "that the real estate above described be sold as upon execution to satisfy and pay the same, after a period of six months after the date of this judgment, 'appraiser of said mortgage having been made.' " From this judgment, and order denying motion for new trial, said appearing defendants have appealed.
The pivotal propositions here submitted are: (1) That the lower court erred in not submitting the case to the jury and in directing a verdict for plaintiff; and (2) that the court erred in rendering judgment for the plaintiff upon the evidence introduced in the case.
If the issues involved were such that the parties were entitled to a jury trial, there was error in the direction of a verdict, for there was sufficient evidence upon the part of defendants, as to the main fact in issue, viz. the incompetency of mortgagor to take the case to the jury if the issue was triable to a jury. However, under the rules heretofore announced by this court, the issues were triable in equity to the court, and not to a jury as a matter of right.
In the case of Maas v. Dunmyer, 21 Okl. 434, 96 P. 591, Maas alleged that at the time of the execution of a deed in controversy there he was insane and without understanding, and upon this allegation asked for the affirmative relief of the cancellation of the deed. The suit was one for foreclosure of a mortgage executed by a grantee of Maas, and did not seek a money judgment against Maas. This court held that this issue involved the application of equitable doctrines, and was the predicate for relief that only a court of equity could give, and said:
"In an action for foreclosure, where a defendant against whom no money judgment is sought by cross-petition in his answer sets up a defense and alleges a cause of action involving the application of equitable doctrines, and seeks relief...
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