Edminster v. Eaton
| Decision Date | 02 December 1936 |
| Docket Number | 6342 |
| Citation | 57 Idaho 115,63 P.2d 154 |
| Parties | CLYDE EDMINSTER, Appellant, v. L. M. VAN EATON, Respondent |
| Court | Idaho Supreme Court |
MORTGAGES-INDEPENDENT ACTION ON NOTE-PLEADING-AFFIRMATIVE ANSWER-RIGHTS OF PLAINTIFF.
1. Statute providing that there can be but one action for recovery of any debt, or enforcement of any right secured by mortgage on real estate or personal property, does not preclude mortgagee from suing in independent action on note for which security was given, where security has become valueless. (I. C. A., sec. 9-101.)
2. In action on note secured by chattel mortgage, mortgagee held not required to allege that note was secured by mortgage and then avoid its effect, where mortgage security had become valueless and it did not appear from face of complaint that note was secured by mortgage.
3. In action on note which answer alleged was secured by unforeclosed mortgage, court erred in refusing plaintiff's proof that security had become valueless since plaintiff was not required to reply to affirmative defense set up in answer.
4. Plaintiff may, since replication or reply to answer is unknown, take advantage of an affirmative matter which would tend to avoid affirmative matter set forth in defendant's answer, as fully as if plaintiff were permitted to specifically plead his matter defensive thereto.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Adam B. Barclay, Judge.
Action on promissory note. Judgment of nonsuit for defendant. Reversed and remanded for further proceedings.
Reversed and remanded.
E. V Larson, Frank L. Stephan and J. H. Blandford, for Appellant.
"There is but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter." (I. C. A., sec. 9-101.) Notwithstanding this statute, where the pleadings do not disclose that plaintiff has security for his indebtedness, a personal action may be maintained. (Richardson v. Lloyd, 90 Mont. 127, 300 P. 254; Vande Veegaete v. Vande Veegaete, 75 Mont. 52, 243 P. 1082.)
Where a mortgagee's security has become valueless he has a complete and independent action on the note for which the security was given. (Bancroft's Code Pleading, vol. 4, p. 3613, sec. 2077; Brophy v. Downey, 26 Mont. 252, 67 P. 312; Clark v. Eltinge, 34 Wash. 323, 75 P. 866.)
Rayborn & Rayborn, for Respondent, upon agreement neither appeared nor filed a brief.
Appellant filed an action in the probate court of Twin Falls county seeking recovery on a promissory note given by respondent to appellant. Respondent answered admitting execution of the note, ownership of appellant, and that certain payments had been made thereon and then alleged a chattel mortgage had been given to secure the payment of the note and that appellant had not fore-closed the mortgage or exhausted the security covered by it. The statute of limitations was also set up as a defense.
The probate court found in favor of respondent and an appeal was taken to the district court.
Proceedings were had in the district court, on the probate court pleadings certified to the district court, where a jury of six was impaneled to try the cause. Appellant testified in support of the allegations of his complaint, identified the note and the same was admitted in evidence. On cross-examination, over appellant's objection that it was not proper cross-examination, testimony was elicited that a chattel mortgage was given to secure the payment of the note and that said chattel mortgage had not been foreclosed. On redirect examination appellant was questioned as to what became of the property described in the mortgage, which was objected to on the ground that the existence of the mortgage or that the security had been exhausted was not pleaded, the court being referred to I. C. A., section 9-101, providing there can be but one action for the recovery of a debt secured by mortgage. The court sustained the objection upon the ground that neither the pleadings of appellant nor respondent alleged that the property had become valueless. Appellant made an offer of proof that the property included in the chattel mortgage in question had become valueless through no fault of appellant, which offer was rejected. Appellant then asked leave to amend the complaint by the insertion of the following:
"That the aforementioned note was originally secured by a chattel mortgage upon certain personal property, including a threshing machine, wagon, and a certain well-drilling machine; that since the giving of said security the said mortgage and the property therein included has become valueless and is no longer security."
Respondent's objection that the motion came too late and that the court had no jurisdiction to permit the amendment was sustained. A judgment of nonsuit was entered for respondent upon his motion, and this appeal is from the judgment entered.
By his specifications of error appellant urges that the court erred in the decision of questions of law during the trial and in sustaining respondent's motion for nonsuit and giving and entering judgment for respondent thereon. The errors in the decision of questions of law urged are: A, In refusing to permit appellant to prove the mortgage security had become valueless; B, In determining that the court had no jurisdiction to permit the amendment; C, In rejecting appellant's offer to prove the worthlessness of the security; D, in refusing appellant permission to amend his complaint to allege that the security had become valueless, and E, In ruling that to permit such an amendment would bring in new or additional, or separate and distinct, issues.
While I. C. A., section 9-101, provides "There is but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter," notwithstanding, where a mortgagee's security has become valueless the mortgagee has a complete and independent action on the note for which the security was given, the rule having been referred to by this court in Clark v. Paddock, 24 Idaho 142, 132 P. 795, 46 L. R. A., N. S., 475, as follows:
(Italics ours.)
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