Finn v. Seegmiller

• Citation: 111 N.W. 314,134 Iowa 15
• Parties: JOHN FINN, Appellant, v. JOHN J. SEEGMILLER, ANNIE SEEGMILLER, MARY SEEGMILLER, JACOB SEEGMILLER, and THE CITIZENS' SAVINGS BANK OF DECORAH, IOWA
• Decision Date: 03 April 1907
• Court: United States State Supreme Court of Iowa

111 N.W. 314

134 Iowa 15

JOHN FINN, Appellant, v. JOHN J. SEEGMILLER, ANNIE SEEGMILLER, MARY SEEGMILLER, JACOB SEEGMILLER, and THE CITIZENS' SAVINGS BANK OF DECORAH, IOWA

Supreme Court of Iowa, Des Moines

April 3, 1907

Appeal from Winneshiek District Court.-- HON. L. E. FELLOWS, Judge.

ACTION to recover judgment on three promissory notes executed by defendants to one Tim Finn, and to foreclose a mortgage securing the same. Defendants pleaded the statute of limitations as to the second note, and offered to confess judgment on the other two notes for the amount of the principal thereof and accrued interest remaining unpaid and for attorney's fees. The court sustained the plea of the statute of limitations as to the second note, rendered judgment on the other two notes, and decreed foreclosure of the mortgage for the amount thus found due. Plaintiff appeals.-- Affirmed.

Affirmed.

E. W Cutting, for appellant.

E. P Johnson, for appellee.

OPINION

McCLAIN, J.

The three notes sued on and the mortgage securing the same were executed by defendants John J. Seegmiller and Annie Seegmiller, June 1, 1892. The notes for $ 300 each, with interest, were made payable by their terms in two, three, and four years, and this action was instituted on June 10, 1905, which was more than ten years after maturity of the first two notes. In May, 1904, the signers of the notes executed a written acknowledgment in the following terms: "Know all men by these presents: That we, John J. Seegmiller and Annie Seegmiller, his wife, of Winneshiek county, Iowa hereby acknowledge that a certain promissory note made by us June 1st, 1892, in favor of Tim Finn, and which note is payable by its terms, June 1st, 1894, and is wholly unpaid except the interest thereon which is paid to June 1st, 1901, and which note has been sold and transferred to John Finn by said Tim Finn. And we do hereby renew said note and hereby promise and agree to pay the same according to its terms on or before June 1st, 1905. We also hereby renew the mortgage agreement given to secure said note." The sole question before us is whether this acknowledgment, expressly referring to the first note, constitutes an admission in writing that the second note remained unpaid, within the provision of Code, section 3456, that "Causes of action founded on contract are revived by an admission in writing signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same."

The contention for appellant is that, as the law will apply payments to notes in the order of their...