First Nat. Bank v. Ballard
| Decision Date | 28 February 1914 |
| Citation | 139 P. 293,41 Okla. 553,1914 OK 86 |
| Parties | FIRST NAT. BANK OF SALLISAW v. BALLARD ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where plaintiff in error has, in compliance with the rules of the court, served and filed his brief, but the defendant in error has neither filed nor offered excuse for failure to file brief, the court is not required to search the record to find a theory upon which the judgment may be sustained, and may reverse the case in accordance with the prayer of the plaintiff in error if the brief filed appears reasonably to sustain such action.
In the absence of consent of mortgage debtor and his surety to make other application, to the extent of the mortgage indebtedness the proceeds of mortgaged property should be applied as credit thereon.
A creditor who has wrongfully applied proceeds of mortgaged property as credit upon another indebtedness of the mortgagor may, in the absence of any intervening adverse right arising from such wrongful application which would affect the rule correct his error by transferring such credit to the mortgage secured debt.
Where a mortgage includes a debtor's entire crop of cotton without reservation in this regard, he is not entitled to retain from the proceeds of such crop compensation of himself and family, for labor in picking same, without the consent of both holder of mortgage and surety.
Commissioners' Opinion, Division No. 1. Error from County Court, Sequoyah County; W. N. Littlejohn, Judge.
Action by the First National Bank of Sallisaw against C. B. Ballard B. E. Moody, and W. H. Brackett, on promissory note. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
J. H Jarman, of Sallisaw, for plaintiff in error.
E. M. Frye, of Sallisaw, for defendants in error.
The position of the parties in respect to their descriptive titles remains the same as in the trial court.
Plaintiff has filed case-made and, in compliance with the rules of court, has served and filed his brief; but the defendant has neither filed nor offered any excuse for failure to file a brief; and, in such cases, this court is not required to search the record to find a theory upon which the judgment may be sustained, but may reverse the judgment in accordance with the prayer of the plaintiff in error, if the brief filed appears reasonably to sustain such action. Phillips v. Rogers, 30 Okl. 99, 118 P. 371; Doyle v. School Dist. No. 38, Noble County, 30 Okl. 81, 118 P. 386; Bank of Grove v. Dennis, 30 Okl. 70, 118 P. 570; Flanigan v. Davis, 27 Okl. 422, 112 P. 990; Missouri, K. & T. Ry. Co. v. Long, 27 Okl. 456, 112 P. 991.
Plaintiff held two notes against defendant, each having, as joint and several makers with him, the signatures of two sureties, one of whom was surety on both notes, one for the principal sum of $345, secured by a chattel mortgage upon property which included the defendant's entire one-half of a crop of cotton, while the other note, for the principal sum of $55.50, was not secured otherwise than as stated above.
Defendant, aided by his family, picked and marketed this crop of cotton, turning in to plaintiff some of the proceeds; and, without any agreement or understanding between any of the parties thereby affected, the plaintiff in the first instance voluntarily applied, as credits upon said $55.50 note, $38.25 of such proceeds, but afterwards, and at the instance of the sureties on said $345 note, canceled said credits on said $55.50 note and applied the same upon said $345 note. The proceeds of the mortgaged property, it appears inferentially, proved inadequate or at most was not more than adequate to discharge said $345 note.
This action was brought upon said $55.50 note, which was admittedly entitled to a credit of $2.50; but defendant claimed in defense in part to the action that said sum of...
To continue reading
Request your trial