Feldman Inv. Co. v. Connecticut General Life Ins. Co.

• Decision Date: 25 July 1935
• Docket Number: No. 1215.,1215.
• Citation: 78 F.2d 838
• Parties: FELDMAN INV. CO. et al. v. CONNECTICUT GENERAL LIFE INS. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

78 F.2d 838 (1935)

FELDMAN INV. CO. et al. v. CONNECTICUT GENERAL LIFE INS. CO.

No. 1215.

Circuit Court of Appeals, Tenth Circuit.

July 25, 1935.

J. J. Henderson, of Tulsa, Okl., for appellants.

Donald L. Brown and E. M. Calkin, both of Tulsa, Okl. (Chas. L. Yancey and G. C. Spillers, both of Tulsa, Okl., on the brief), for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

The First National Building Company executed (1) its promissory note for $100,000, dated June 26, 1930, payable to the Monarch Investment Company in stated installments of specified amounts, the first being for $1,000 due January 1, 1931, and (2) a mortgage to secure payment of the note covering certain premises situated in Tulsa, Okl. The note and mortgage each provided that default in payment of any installment of either principal or interest when due should at the option of the holder mature the entire debt and the mortgage contained an additional provision that if the mortgagor failed to pay any taxes when due, the holder of the obligation should have the right to pay them and then declare the entire amount due in like manner. The note was transferred and the mortgage assigned to plaintiff on August 1, 1930.

Plaintiff instituted this action in conventional form alleging that default had been made in payment of principal and interest on the note, that the mortgagor had failed to pay certain taxes, that plaintiff had paid them, and that by reason of such facts it had elected to mature the full sum due on the note. First National Building Company, Feldman Investment Company, Jewish National Culture Alliance, each being a corporation, and others were joined as parties defendant with appropriate allegations that the last-named defendants claimed some right in the premises, but that they were inferior to the mortgage lien. Chancery subpæna issued and the marshal made return showing, among other things, that he served it upon the defendant Jewish National Culture Alliance by delivering a true copy thereof to Robt. Feldman, its president, and that he was the person having charge at the usual place of business of the corporation.

A motion for extension of time within which to plead or answer was filed. It purported to be the motion of the defendants Building Company, Investment Company, and Culture Alliance, and was signed by R. C. Searcy as their attorney. Later a written stipulation was filed purporting to be that of plaintiff and the defendants just named in which all the allegations contained in the bill were confessed and providing that the Building Company should within ninety days pay all principal, interest, taxes, and insurance then due or to become due during the ninety-day period; that upon such payment the suit should be dismissed, but upon failure to make it plaintiff should be entitled to a decree as to such defendants in conformity with the prayer in the bill. Silverman, Rosenstein & Fist signed that stipulation for the three defendants named and it was approved by the court. Payment of the stated sums was not made within the specified time and a decree of foreclosure was entered. The court subsequently directed the clerk to issue a special execution and order of sale conforming to the decree. Thereafter the defendant Culture Alliance, acting through its attorney who appears in its behalf in this court, filed separate motions to set aside the decree and to recall the order of sale on the ground that it was the record owner of the property at the time the decree was entered; that no summons or other process had been served upon it; that it had not entered its appearance in the case nor authorized anyone to do so for it; and that accordingly the court was without jurisdiction to render the decree against it. It later filed a like motion to set aside the sale. Defendants Investment Company and Building Company moved to vacate the sale and to refuse to confirm it. They also interposed exceptions to the sale.

The court heard testimony upon the several motions and found that Feldman caused the defendant Culture Alliance to be organized; that he employed Searcy to render the necessary legal services in that connection; that the two of them together secured the charter; that Feldman had been in active charge of the premises sought to be foreclosed and employed the several attorneys named to represent the defendant; that the defendant had entered its general appearance in the case by the motion for an extension of time within which to plead or answer and by the stipulation, each of which was filed before entry of the decree, by the motion to set the decree aside and by the motion to vacate the sale; and that the attorneys who appeared for it at the respective stages of the proceedings were authorized to act in its behalf. The court thereupon inquired whether the defendant in question had a defense to the note and mortgage in suit and indicated clearly a willingness to vacate the decree if it did. The defendant contented itself with the reply that it was unnecessary to set up a defense. The motions to set the decree aside and to vacate the sale were then overruled and the sale was confirmed. The appeal is from that action.

Whether the court had jurisdiction of the Culture Alliance is the first question presented for attention. Feldman was not its president and the return upon the subpœna was inaccurate in that respect. But an application for extension of time within which to plead and a stipulation confessing judgment if certain payments were not made within ninety days were each filed before the decree was rendered. The filing of an application or stipulation for an extension of time within which to answer or otherwise plead constitutes a general appearance. Hupfeld v. Automaton Piano Co. (C. C.) 66 F. 788; Murphy v. Herring-Hall-Marvin Safe Co. (C. C.) 184 F. 495; Hoyt v. Ogden Portland Cement Co. (C. C.) 185 F. 889; Placek v. American Life Ins. Co. (D. C.) 288 F. 987; Brookings State Bank v. Federal Reserve Bank (D. C.) 291 F. 659; Briggs v. Stroud (C. C.) 58 F. 717; Everett Ry., Light & Power Co. v. United States (D. C.) 236 F. 806; Holt v. Gaston County Dyeing Machine Co. (D. C.) 24 F.(2d) 598; Paramount Publix Corp. v. Boucher, 93 Mont. 340, 19 P.(2d) 223; Richards v. Goldstein, 124 Neb. 438, 246 N. W. 925. And the filing of an offer to confess judgment constitutes a like appearance. Maryland Casualty Co. v. Murdock State Bank, 76 Neb. 314, 107...