First Nat. Bank of Dickinson v. Kling, 6299.

• Decision Date: 20 December 1934
• Docket Number: No. 6299.,6299.
• Citation: 257 N.W. 631,65 N.D. 264
• Parties: FIRST NAT. BANK OF DICKINSON v. KLING et al.
• Court: North Dakota Supreme Court

65 N.D. 264

257 N.W. 631

FIRST NAT. BANK OF DICKINSON

v.KLING et al.

No. 6299.

Supreme Court of North Dakota.

Dec. 1, 1934.

Rehearing Denied Dec. 20, 1934.

Syllabus by the Court.

1. Under section 7355, Compiled Laws 1913, the distinction between actions at law and suits in equity is abolished, and there is but one form of action for the enforcement or protection of private rights or private wrongs which is denominated a civil action.

2. Under section 7404, Compiled Laws 1913, any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of the questions involved therein.

Held, that a person in possession of and claiming to be the owner of property, upon which another claims a mortgage which he is seeking to foreclose, is a proper and necessary party to a complete determination or settlement of the questions involved in the foreclosure action.

3. Section 7 of the Constitution, namely: “The right of trial by jury shall be secured to all and remain inviolate,” preserves the right to a jury trial in all cases triable to a jury prior to the adoption of the Constitution, and includes actions to determine the title and right of possession of personal property.

4. In an action to foreclose a mortgage or other lien, the plaintiff may unite all his causes of action arising from the same transaction or transactions connected with the subject of the same action, but in doing so, if he brings in a third party, a stranger to the mortgage, who claims to be the owner and entitled to possession of the property, his action to foreclose does not deprive such third party of his right to a trial by jury. The title and possession of specific personal property, prior to the adoption of the Constitution, was triable to a jury, and remains inviolate.

5. Under section 7608, Compiled Laws 1913, an issue of fact in an action for the recovery of personal property must be tried by a jury, unless a jury trial is waived.

Appeal from District Court, Dunn County; W. R. Schell, Judge.

Action by the First National Bank of Dickinson, a corporation, against Walter R. Kling and R. S. Brookings. From an adverse judgment, the last-named defendant appeals.

Judgment reversed, and new trial ordered.

C. H. Starke, of Dickinson, for appellant.

Simpson, Mackoff & Kellogg, of Dickinson, for respondent.

BURKE, Judge.

This is an action to foreclose a chattel mortgage executed by the defendant Walter R. Kling to the First National Bank of Dickinson, N. D., to secure the payment of an indebtedness owing by the said defendant Kling to said bank. Attached to the complaint is a copy of the mortgage, in which the defendant Kling mortgages to the bank “Forty Five (45) head, or more, of mixed Percheron and Beligian horses, various colors, and running in ages from yearlings to nine years old, mostly unbranded, it being understood and agreed that the above described horses are ranging with horses owned by R. S. Brookings all of which are branded <>3 (bar 3 bar) or <>E (bar E bar) on the right shoulder, and that the horses herein mortgaged are owned solely by me and in which R. S. Brookings has no interest whatsoever, the horses owned by him being all branded with his brand or brands, and none of the horses which are owned by me carry any of the brands of R. S. Brookings, except in which I have an undivided half interest with R. S. Brookings, it being further understood and agreed that this mortgage is intended to cover and does cover all the horses owned by me of whatever description, with or without brands or marks, and of whatever age, color, sex, brand or description, with or without brands.”

Paragraph 9 of the complaint alleges: “That the defendant, Walter R. Kling, without the knowledge and consent of this Plaintiff, and subsequent to the giving of these mortgages to the Plaintiff, branded twenty (20) of the horses mentioned and described in Exhibit ‘A,’ and upon which this plaintiff held a first mortgage, and which horses were the individual property of the defendant, Walter R. Kling, with the brand <>E on the right shoulder, which brand belongs to and is the property of the Defendant, R. S. Brookings; that the said R. S. Brookings now claims the ownership of the said twenty head of horses now bearing the brand <>E, but which are the separate and individual property of the Defendant, Walter R. Kling, and upon which the Plaintiff holds a first mortgage, and that the claim to the said twenty head of horses by the said Defendant, R. S. Brookings, is subject to and inferior to the lien and mortgage of this plaintiff mentioned and described as Exhibit ‘A,’ and that the said Defendant, R. S. Brookings, has possessed himself of the said twenty head of horses and holds the same claiming the right of ownership thereto, but that such is subject to the lien and mortgage, Exhibit ‘A,’ which the Plaintiff owns and holds.” To this paragraph in the complaint there is an amendment, reading as follows: “That the defendant, R. S. Brookings, claims some interest, or lien, or incumbrance upon the property mentioned and described in Exhibits ‘A’ and ‘B,’ but that such claim, lien or incumbrance of said R. S. Brookings is inferior and subject to the mortgage and lien and claim of the Plaintiff herein.”

Upon the filing of the complaint and the undertaking required by law, the statutory warrant was issued under which the sheriff was ordered to seize the horses described in the mortgage belonging to the defendant Walter R. Kling, and by virtue of this warrant the sheriff seized and took into his possession twenty head of horses branded <>E on the right shoulder,the defendant Brookings' brand.

The defendant Kling defaulted, and the defendant Brookings demurred to the complaint on the ground: “1. That several causes of action have been improperly united. 2. That the Complaint does not state facts sufficient to constitute a cause of action against the defendant, R. S. Brookings.”

The demurrer was overruled, and the defendant Brookings filed an answer, and thereafter filed a supplemental answer denying “that he claims or at any time did claim any interest in any horses belonging to the defendant Walter R. Kling. * * * Alleges that he is the owner of the brand <>E and the horses and cattle bearing that brand; * * * That this defendant has no knowledge of the fraudulent branding of horses belonging to the defendant, Walter R. Kling, and mortgaged to the plaintiff, and therefore puts the plaintiff to the proof” that the horses taken by the sheriff “and branded with this defendant's brand <>E were the horses of the defendant, Walter R. Kling, and subject to the plaintiff's mortgage. The defendant specially denies that the following horses described in the notice and bill of particulars furnished to the defendant are or ever have been the property of the defendant Walter R. Kling, or subject to the Plaintiff's mortgage: 1 sorrel gelding, wht. strip in face, wht. feet, 1 bay mare, wht. strip in face, 1 bay original colt, wht. hind feet, and rt. front foot, 1 bay stud, wire cut on lft. hind leg, small wht. spot in forehead, 1 bay mare, white hind feet, 1 brown mare, 900 lbs., 1 brown mare 950 lbs., 1 small mare colt, star on forehead, 1 yearling stud, brown, wht. spot on forehead. * * * Defendant alleges that he is the owner of and entitled to the possession of all the horses branded <>E.”

In paragraph 6 of the supplemental answer twenty-one head of horses, taken by the sheriff under the warrant, are described and claimed as the property of the defendant Brookings, who prays judgment that the plaintiff take nothing against this defendant, and that the defendant R. S. Brookings have judgment against the plaintiff.

The case being on the calendar for trial at the September, 1932, term of court, the defendant Brookings by his attorney, moved for a trial by jury, which motion was denied by Judge Pugh, the presiding judge. At the opening of the May, 1933, term, the defendant renewed his motion for a jury trial upon the issues raised by his answer, and the motion was overruled by Judge Berry, the presiding judge. At the April, 1934, term of court, the defendant again demanded a jury trial, which was denied, judgment was rendered for the plaintiff, and defendant R. S. Brookings appeals from the judgment.

Appellant claims, first, that the court erred in overruling the demurrer to the complaint on the ground of misjoinder of actions.

[1] Under section 7355, Compiled Laws 1913, the distinction between actions at law and suits in equity is abolished, and there is but one form of action for the enforcement or protection of private rights and the redress of private wrongs which is denominated a civil action. Under section 7404, Compiled Laws 1913, any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to the complete determination or settlement of the questions involved therein. Under section 7466, Compiled Laws 1913, the plaintiff may unite in the same complaint several causes of action, whether they are such as have been...