First Trust Joint Stock Land Bank of Chicago v. Albers
| Decision Date | 08 February 1938 |
| Docket Number | 44126. |
| Citation | 277 N.W. 451,224 Iowa 865 |
| Parties | FIRST TRUST JOINT STOCK LAND BANK OF CHICAGO v. ALBERS et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Monona County; Robert H. Munger, Judge.
An action in equity to foreclose real estate mortgage in which decree was entered on May 29, 1933, and in which an order had been granted extending the period of redemption to March 1 1937, and in which application was filed on February 27 1937, for further extension of redemption period to March 1 1939. From an order granting the further extension to March 1, 1939, plaintiff appealed.
Affirmed.
Underhill & Underhill, of Onawa, and H. H. Lommen, of Chicago, Ill., for appellant.
C. E. Cooper, J. F. Cooper, and Prichard & Prichard, all of Onawa, for appellees.
On January 7, 1926, the appellees Ernest Albers and Mildred Albers made, executed, and delivered to appellant their promissory note in the sum of $20,000, and as security therefor executed and delivered to said appellant their mortgage conveying 203 acres of real estate in Monona county, described as follows: " The South Half (S 1/2 ) of the Northeast Quarter (NE 1/4 ) of Section thirty-four (34); the Northwest Quarter (NW 1/4 ) of the Southeast Quarter (SE 1/4 ) of said Section thirty-four (34); the South half (S 1/2 ) of the Northwest Quarter (NW 1/4 ) of said Section thirty-four (34) and the North three acres of the Northeast quarter (NE 1/4 ) of the Southwest quarter (SW 1/4 ) of said Section Thirty-four (34), all in Township Eighty-five (85) North, Range Forty Six (46), West of the Fifth Principal Meridian, and containing in all 203 acres, more or less." Foreclosure action thereon was commenced December 23, 1931, decree of foreclosure entered on May 29, 1933, and thereafter the above-described premises were sold at sheriff's sale under special execution to appellant herein. Thereafter, on the 21st day of May, 1935, an order of court was granted extending the period of redemption to March 1, 1937, in accordance with the provisions of chapter 110 of the Acts of the Forty-Sixth General Assembly. On February 27, 1937, said appellees filed in the office of the clerk of the district court of Monona county, Iowa, an application to extend the period of redemption to the 1st day of March, 1939, in accordance with the provisions of chapter 78 of the Acts of the 47th General Assembly. No separate order was made by the court in Monona county in this particular action, fixing a date for hearing thereon, or prescribing notice thereof, but on February 27, 1937, said court made a general order applicable to all cases pending therein, wherein applications were filed asking that the time of redemption be extended to March 1. 1939, which order was as follows, to wit: " And now, to-wit, on this 27th day of February, 1937, it appearing that applications in various cases have been filed asking that the time to redeem from sheriff's sales be extended to March 1, 1939, it is ordered by the Court that in all cases where such application for extension of time to redeem to March 1, 1939, are filed prior to March 1, 1937, that the same shall stand for trial at the court house in Onawa, Iowa, at the March term 1937 of said Court at two p. m., on the 16th day of March, 1937, and that notice thereof shall be given to the various and several plaintiffs in said actions by the Clerk of this Court by registered mail duly stamped and addressed." A notice, pursuant to the order, was sent by registered mail to appellant by the deputy clerk of Monona county, on March 11, 1937. On March 6, 1937, the appellee filed its resistance to the application for an extension of redemption period, and in the first paragraph thereof alleged as follows: " That said application is insufficient for the reason that no order was made fixing a hearing on said application and providing for notice as required by law prior to March 1, 1937." On March 23, 1937, said application came on for trial, and on March 29, 1937, the court entered an order extending the period of redemption to March 1, 1939.
Appellant, in its first assignment of error, claims that the court erred in granting the second extension period of redemption to the 1st day of March, 1939, for the reason that the court had no jurisdiction to grant such extension, claiming the period of redemption which had been extended by the previous order of court had expired prior to the time when notice was given on the present application, and prior to the time when any hearing was had on said present application. It is to be noted that appellant in this assignment of error extends considerably the limited claim that was made by it in the court below, as there the only objection was that no order was entered fixing time of hearing and providing for notice as required by law prior to March 1, 1937, whereas, it is now the claim of appellant that the court had no jurisdiction on account of the fact that the period of redemption had expired prior to the time when notice of hearing on the application was given (March 11, 1937), and prior to the time of the hearing (March 23, 1937). In the first instance it seems to us that the appellant has so enlarged its claim in this court from that claimed below, that it is a matter of serious doubt whether or not the question now urged by appellant was before the trial court.
In considering the claim before the trial court, that no order had been made fixing time of hearing and providing for notice, prior to March 1, 1937, the evidence is undisputed that the general order of the court, above referred to, was made on February 27, 1937; that this order fixed the time for hearing on all applications for extension of the period of redemption, and provided for notice thereof. As a result thereof, if there is any merit in appellant's contention in the trial court, it must be based upon the ground that such general order does not constitute compliance with the portion of section 6 of chapter 78 of the Acts of the 47th General Assembly, providing as follows: " Immediately upon filing of the application for the further extension of a period of redemption, the court shall set the time and place of hearing and prescribe the kind of notice to be given to all parties plaintiff." We are unable to conceive why such a general order, the very terms of which make it applicable to every such pending case, should not be a sufficient compliance with the portion of section 6 set out above. It is to be observed that said section directs the court to set the time and place of hearing upon the application, and prescribe the kind of notice to be given thereof, and the general order of the court does set the time and place of hearing, does prescribe the kind of notice to be given thereof, and directs that said order shall apply to each and every action pending in Monona county, Iowa, asking for an extension of the period of redemption to March 1, 1939. We are unwilling to establish a rule that the entry of such an order applying to all cases is invalid, but that a separate order, to the same identical effect, would be valid.
Appellant, however, strenuously insists that its pleading before the trial court was broad enough to raise the question that is now being urged, and in view of the fact that its claim in this court raises the question of the court's jurisdiction, we think it advisable to consider the same, and the effect thereof.
It is the contention of appellant that the prior holdings of this court in Mohns v. Kasperbauer, 220 Iowa 1168, 263 N.W. 833, and in Iowa-Des Moines Nat. Bank & Trust Co. v. Alta Casa Investment Co., 269 N.W. 798, are determinative of this question, to the effect that the court was without jurisdiction. At the outset it is to be noted that in each of the above-cited cases, there had been no prior extension of the period of redemption, and in both of said actions the question submitted to this court had only to do with the extension of the period of redemption for the first time. The Mohns Case was decided under the provisions of chapter 179 of the Acts of the 45th General Assembly, and the Alta Casa Investment Co. Case was decided under the provisions of chapter 110 of the 46th General Assembly. The salient facts in both of said cases were identical in the following particulars: First, that the applications were filed before the expiration of the statutory one-year period of redemption; second, that no orders of court prescribing notice to be given to the plaintiffs of said applications were entered prior to the expiration of the statutory one-year period of redemption; and, third, that no notice was served upon plaintiffs prior to the expiration of such statutory one-year period of redemption.
Chapter 179 of the Acts of the 45th General Assembly was the law applicable to the Mohns Case, and the first paragraph of section 1 thereof provided as follows: " In any action for a real estate foreclosure of a mortgage or a deed of trust, which has been commenced in any of the courts, and in which a decree has been or may hereafter be entered, but the redemption period, as now provided, has not expired upon application of the owner or owners of such real estate, the court shall, unless upon hearing upon said application good cause is shown to the contrary, order that no sheriff's deed shall be issued until March 1, 1935, and in the meantime the such owner or owners may redeem such property, and are entitled to possession thereof." In the Mohns Case, Mr. Justice Albert, speaking for the court, used the following language: ...
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