First Nat. Bank of Dickinson v. Kling

• Court: North Dakota Supreme Court
• Writing for the Court: BURKE
• Citation: First Nat. Bank of Dickinson v. Kling, 65 N.D. 264, 257 N.W. 631 (N.D. 1934)
• Decision Date: 01 December 1934
• Docket Number: 6299

257 N.W. 631

65 N.D. 264

FIRST NATIONAL BANK OF DICKINSON, a Corporation, Respondent, v. WALTER R. KLING and R. S. Brookings, and R. S. BROOKINGS, Appellant

No. 6299

Supreme Court of North Dakota

December 1, 1934

Rehearing denied December 20, 1934.

Appeal from the District Court of Dunn County, Schell, J.

Reversed and a new trial ordered.

C H. Starke, for appellant.

Simpson Mackoff & Kellogg, for respondent.

Burke, J. Burr, Ch. J., and Christianson and Moellring, JJ., concur. Nuessle, J. I cannot agree with all of the reasoning of the foregoing opinion but I concur in the result.

OPINION

BURKE

This is an action to foreclose a chattel mortgage executed by the defendant, Walter R. Kling, to the First National Bank of Dickinson, North Dakota, 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 nine 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 six 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.

Under § 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 § 7407, 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 § 7468, Compiled Laws 1913, the plaintiff may unite in the same complaint several causes of action, whether they are such as have been heretofore denominated legal or equitable, or both, where they all arise out of the same transaction, or transactions connected with the same subject of the action.

Under these statutes there is but one form of action denominated a civil action in which any person may be made a defendant who has or claims an interest adverse to the plaintiff or who is a necessary party to the complete determination or settlement of the questions involved therein and the plaintiff in bringing his action may unite in the same complaint several causes of action, whether they are such as have been heretofore denominated legal or equitable, or both, and arise out of the same transaction or transactions connected with the same subject of the action.

From the complaint in the instant case it appears that a past due mortgage, given by the defendant, Kling, to the plaintiff, is being foreclosed. It further appears that the defendant Brookings, has an adverse interest to the claim of the plaintiff in the mortgaged...