First Nat. Bank v. Cranmer
| Decision Date | 05 January 1920 |
| Docket Number | 4622. [*] |
| Parties | FIRST NAT. BANK OF ABERDEEN et al. v. CRANMER et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County; Thomas L. Bouck, Judge.
Action by the First National Bank of Aberdeen against Emma A Cranmer and others, in which Fred H. Gannon was appointed receiver of the mortgaged property. From judgment entered upon receivership and from order denying new trial, Emma A Cranmer and S. H. Cranmer appeal. Judgment modified, and, as modified, affirmed.
Amos N Goodman, of Aberdeen, and S. H. Cranmer, of Minneapolis Minn., for appellants.
Van Slyke & Bartlett, of Aberdeen, for respondents.
In an action brought by the plaintiff against the Cranmers and others, wherein plaintiff sought the foreclosure of a real estate mortgage given it by the Cranmers, one Gannon was appointed as receiver, both pendente lite and until deed upon foreclosure issued, with authority to preserve the property and collect the rentals therefrom. He collected large sums of money from the rentals. At the time of the rendition of the judgment of foreclosure, the receiver made a report to the court, reporting rentals collected, moneys paid for taxes and repairs, and the balance on hand. Of this report the Cranmers then had no notice.
The court directed the payment of such balance, $307.96, to the plaintiff, and, in rendering judgment, credited that amount on the mortgage indebtedness. After the deed on foreclosure issued, the receiver made a report covering the period subsequent to the aforementioned judgment. He reported the rentals collected, the moneys paid out for taxes and repairs, and he sought to be allowed to pay out the balance in his hands for various and sundry things, among which was the satisfaction of the deficiency judgment left on foreclosure sale. This report also recited the former payment of the $307.96 that was applied on the mortgage indebtedness. To these reports the Cranmers interposed an answer, objecting to the allowance of certain of the payments that had been made by the receiver, and also objecting to the receiver being allowed to make certain other payments mentioned by him in his report. On the issues so raised trial was had, the receiver appearing by plaintiff's council. Findings of fact, conclusions of law, and judgment were entered upon this receivership matter. From such judgment and from an order denying a new trial this appeal was taken by the Cranmers; the plaintiff and receiver being named as respondents.
The motion for new trial was based upon the minutes of the court. The notice of intention to move for new trial set forth the specifications of alleged error. There was therefore no record settled prior to the hearing of the motion for new trial. Before there was any attempt to settle the record, the trial judge died. His successor undertook to settle the record, but acted without authority from this court. Section 2553, Rev. Code 1919. Respondents contend, and correctly, that because of such fact there is no settled record. Furthermore, from appellants' brief it does not affirmatively appear that it contains a statement of all the material evidence. These defects render it impossible for us to review the sufficiency of the evidence to support the findings (section 3149, Rev. Code 1919); but such defects do not prevent our considering the sufficiency of the findings to support the judgment-a matter that could be raised if there had been neither motion for new trial nor settled record.
The notice of appeal specifies particularly the portions of the judgment appealed from, and thus eliminates from our consideration several of the alleged errors specified below as well as several assigned in this court.
Appellants question the propriety of the receiver's expenditure of money for a certain repair. As this presents a question of fact, the review of which would necessitate our passing upon the sufficiency of the evidence to support the court's finding in relation thereto, we cannot, for reasons hereinbefore set out, review same.
The only other matters from which appeal was taken were those parts of the judgment approving the payment of the $307.96 to apply on the mortgage debt, and directing the receiver to pay plaintiff $117.62-the amount of deficiency judgment.
Appellants contend, and correctly, that the rents and profits of the mortgaged premises accruing prior to issuance of the deed on foreclosure belonged to them, and that the trial court was without power to authorize the receiver to use any part thereof to pay the mortgage indebtedness. They cite Rudolph v. Herman, 4 S. D. 283, 56 N.W. 901; Siems v. Bank, 7 S. D. 338, 64 N.W. 167; Kettering v. Barber, 37 S.D. 602, 159 N.W. 133.
It is true that this court has held, in Roberts...
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