First Methodist Episcopal Church of Grand Forks v. Fadden

• Decision Date: 26 November 1898
• Citation: 8 N.D. 162,77 N.W. 615
• Parties: FIRST METHODIST EPISCOPAL CHURCH OF GRAND FORKS v. FADDEN (ROLLINS et al., Interveners).
• Court: North Dakota Supreme Court

8 N.D. 162

77 N.W. 615

FIRST METHODIST EPISCOPAL CHURCH OF GRAND FORKS

v.FADDEN (ROLLINS et al., Interveners).

Supreme Court of North Dakota.

Nov. 26, 1898.

Syllabus by the Court.

1. It is the province of the court to declare upon what pleadings a case must be tried. Counsel cannot control the matter.

2. When a statute changing a rule of evidence has gone into effect, cases thereafter tried must be governed thereby, unless there be a limitation in the statute, although the pleadings were filed before the law went into effect.

3. Where a statute expressly makes the record of an instrument prima facie evidence of the facts therein stated, such record, when offered in evidence, is not vulnerable to the objection that it is secondary.

4. It is necessary to a valid affidavit of foreclosure sale, as required by our statute, that it show on its face that the sale was made by some person authorized by law to make such sale; and, when the party making the sale states in his affidavit that he is a deputy sheriff, the statute makes the affidavit prima facie evidence of that fact, and no other proof of his official capacity is required until such prima facie case is overcome.

5. A grantee of real estate who takes the same subject to a mortgage thereon is not required, upon foreclosure of said mortgage, to pay the attorney's fee specified in the mortgage, when the same exceeds that allowed by law.

6. An officer who sold mortgaged property for an amount in excess of what was due under the terms of the mortgage cannot excuse himself for not paying such excess to the mortgagor on demand, by showing that the excess went into the hands of the mortgagee.

7. When, at the close of the testimony, each party moved for a directed verdict in his favor, and, the motion of one being overruled, he did not ask that any question of fact be submitted to the jury, such party must be regarded as having submitted all controverted questions of fact to the court for determination, and the decision of the court thereon will not be disturbed if it have support in the testimony.

Appeal from district court, Grand Forks county; Charles H. Fisk, Judge.

Action by the First Methodist Episcopal Church of Grand Forks against John O. Fadden. E. H. Rollins & Son intervened. From a judgment for plaintiff, defendant appeals. Affirmed.Burke Corbitt, for appellant. Bosard & Bosard, for respondent.

BARTHOLOMEW, C. J.

This action originated in justice court, was appealed to the district court, and a trial there resulted in a directed verdict for plaintiff. A motion for a new trial was denied, and defendant appeals from the order. The defendant, as sheriff of Grand Forks county, acting through a deputy, sold the church property belonging to the plaintiff, under a statutory foreclosure of a mortgage upon such property executed by plaintiff's grantor. The property sold for the full amount claimed in the notice of sale, being the amount due upon the note secured by the mortgage and an attorney's fee of $100, together with the costs of sale. The property was purchased by the mortgagee. The statute then in force (chapter 16, Laws 1889) declared that for foreclosing a mortgage upon real estate, where the same was done by a resident attorney, there should be allowed an attorney's fee of “ten dollars, and no more.” Plaintiff, claiming that the property sold for $90 more than was due thereon, demanded such sum from defendant, and, upon his failure to pay the same, brought this action. The answer was in denial, and specially denied plaintiff's corporate capacity. It admitted the demand, and set up full satisfaction and settlement of the claim by the mortgagee. The answer was not verified. At the trial in justice court, plaintiff offered no evidence of its corporate capacity. The answer was filed December 28, 1895. The case was not tried until after January 1, 1896, the date at which the Revised Codes went into effect. Under the statute in force prior to that time (section 2908, Comp. Laws), a corporation plaintiff was required to prove its corporate capacity where it was specifically denied by the answer. Under section 5754, Rev. Codes, no proof of corporate existence was required, unless such existence was denied under oath. The justice ruled that, insomuch as the answer was filed before the new law went into effect, its provisions could not control at the trial, and dismissed the case for want of proof of corporate existence. After plaintiff appealed to the district court, the mortgagee, a corporation, was permitted to intervene; but neither the petition in intervention nor any other pleading on its part appears in the abstract. Subsequently, plaintiff served and filed an amended complaint in the action. No new issues were pleaded, but the facts were stated more fully and in detail. To this amended complaint defendant answered, setting forth the same defenses, in substance, as in his original answer. Neither of these pleadings was verified. On the opening of the trial in the district court, plaintiff's counsel stated that he would go to trial on the original and amended pleadings, and read the same to the jury. Subsequently the court ruled that the case must be tried on the amended pleadings. This was the first ground urged for a new trial. It is not tenable. It was for the court to say upon what issues the case stood for trial. It was not the province of counsel to determine that matter. It is elementary that where a pleading is filed which purports to be, and is in fact, an amended pleading, and not an amendment to a pleading, the old pleading, as such, is superseded. A party cannot have two distinct and complete complaints in the same case at the same time. Defendant doubtless desired to have the case tried upon the pleadings as made in justice court, hoping thereby to force plaintiff to prove its corporate existence. But, even under those pleadings, no such result could have followed. The provision in the Revised Codes simply related to a matter of proof, to a rule of evidence, and applied in pending cases, as well as cases to be commenced. Conrad v. Smith, 6 N. D. 337, 70 N. W. 815.

The second point urged relates to rulings upon evidence. Plaintiff, over defendant's objections, introduced in evidence the record of the foreclosure. We...