First Nat. Bank v. Jaffrey

• Decision Date: 10 November 1888
• Citation: 19 P. 626,41 Kan. 691
• Parties: THE FIRST NATIONAL BANK OF PEORIA et al. v. EDWARD S. JAFFRAY et al
• Court: Kansas Supreme Court

19 P. 626

41 Kan. 691

THE FIRST NATIONAL BANK OF PEORIA et al. v. EDWARD S. JAFFRAY et al

Supreme Court of Kansas

November 10, 1888

Error from Cowley District Court.

ACTION brought by the First National Bank of Peoria, Illinois, and William E. Stone, against Edward S. Jaffray and numerous other defendants, to foreclose nine certain quitclaim deeds as mortgages, and to recover judgment for $ 15,000; also, to foreclose the prior mortgages on the mortgaged lands purchased by said bank on October 30, 1885. Trial at the September term, 1886, and judgment for defendants. The plaintiffs bring the case here. The opinion contains a sufficient statement of the facts.

Judgment affirmed.

Jack & Tichnor, and Mansfield, Eaton & Pollock, for plaintiffs in error.

Peckham & Henderson, Irwin Taylor, and Weigley, Bulkley &amp Gray, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

The assignments of error in the petition in error filed in this court are as follows:

1. That the court erred in admitting evidence of the defendants in error, to which plaintiffs in error at the time objected.

2. That the court erred in ruling out the evidence offered by the plaintiffs in error on the trial of said action.

3. That the judgment was given for the defendants in error, when it ought to have been given for the plaintiffs in error, according to the law of the land.

It will be seen that the ruling of the trial court on the motion for a new trial is not assigned as error, and hence this case falls within the ruling in the cases of Carson v. Funk, 27 Kan. 524, and Clark v. Schnur, 40 id. 72. It is held in these cases:

"Where in an assignment of errors, the only errors complained of relate to matters occurring on the trial, for which a new trial was prayed, but the action of the court in overruling the motion is not assigned for error, no question is properly raised in this court."

In this case the motion for a new trial was based upon the following causes: Because the decision was contrary to the evidence, and contrary to the law; because the judgment was not sustained by sufficient evidence; and because of errors of law occurring during the trial, and excepted to at the time. The motion was overruled and all exceptions were saved, but the ruling on the motion is not assigned as error in the petition filed in this court.

The only question, then, made in the briefs of counsel for plaintiffs in error, that we can consider in this condition of the record, is, whether the pleadings authorized such a judgment as was rendered in the action. Briefly summarized the petition seeks to have nine certain quitclaim deeds executed by one Gordis R. Cobleigh and wife to the plaintiff in error, W. E. Stone, construed as mortgages to secure the sum of $ 15,000, and to foreclose the same. The lands conveyed are situated in the counties of Cowley, Ottawa, Lincoln, Russell, Ellis, Rush, Barton, Elk, and Rooks. These deeds were executed on the 10th day of January, 1884, but not recorded until about the 1st day of September following. About the 23d day of September a written instrument was executed, showing that these conveyances were made, executed and delivered as security for the sum of $ 15,000. These lands in fact belonged to Day Bros. & Co., a mercantile firm in Peoria, Illinois, but were held in the name of...