Grieve v. Huber, 1573
| Decision Date | 15 January 1930 |
| Docket Number | 1573 |
| Citation | 283 P. 1105,41 Wyo. 168 |
| Parties | GRIEVE v. HUBER, ET AL. [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied--See 285 P. 788
Rehearing Denied 41 Wyo. 168 at 185.
APPEAL from the District Court, Natrona County, CYRUS O. BROWN Judge.
Action for the foreclosure of a mortgage by Harriet T. Grieve against Paul Huber, the Central Trading Company, and others. From an adverse judgment and an order confirming the sale of real estate, Central Trading Company appeals.
Affirmed.
For the appellant, there was a brief by S.E. Phelps of Casper Wyoming, and oral argument by Mr. Phelps.
Appellant was served with an alias summons, and made a special appearance which was overruled below, and on appeal this court held its appearance to have been general. Grieve v. Huber, (Wyo.) 266 P. 128. Thereafter, appellant demurred to the petition, but no hearing was had on its demurrer. Subsequently, an order and decree of foreclosure and sale of the mortgaged premises was entered, premises sold, and sale confirmed. Appellant received no notice of the application for confirmation. Appellant's property was appropriated for the satisfaction of a judgment to which it was not a party. Bertagnolli Bros. v. Bertagnolli, (Wyo.) 148 P. 374. The judgment was void, and may be attacked for the first time on appeal. Boulter v. Cook, 32 Wyo. 461; State v. Dist. Court, 33 Wyo. 281. Appellant was not a party to the action prior to the judgment of August 27, 1926, nor until July, 1927, and was not given notice of the proceedings for confirmation, or order of confirmation made December 17, 1928, as required by Chap. 360, Article VIII, C. S. 1920. Appellants property was appropriated and sold without due process of law. The court was without jurisdiction. Sache v. Gillette, (Minn.) 112 N.W. 386; Shields v. Miller, 9 Kan. 390; Romig v. Gillette, (Okla.) 62 P. 807. Appellant was entitled to notice of confirmation. 5716 C. S. There was no presumption of jurisdiction. Mahan v. Wyopo Co., 27 Wyo. 17; Galpin v. Page, 18 Wall. 350, 366, 21 L.Ed. 959; Vande Veegaete v. Vande Veegaete, 255 P. 348; Sharp v. Sharp, 333 Ill. 267, 164 N.E. 685. There was a violation of appellant's constitutional right to due process of law. United States Const. Fifth Amendment; United States Const. Fourteenth Amendment; Wyoming Constitution, Article I, Section 6; Terrance v. Thompson, 44 S.Ct. 15; Corporation v. Oswego, 215 N.Y.S. 159, 217 N.Y.S. 967; Beatrice Creamery Co. v. Cline, 9 F.2d 179; Bass v. City of Casper, 28 Wyo. 387; Stewart v. Palmer, 74 N.Y. 183; State v. North, (Mo.) 264 S.W. 678; Moffat Co. v. Hecke, (Colo.) 228 P. 545; Trust Co. v. Sanford, (Ill.) 139 N.E. 603. There was no service according to law. Chicago v. Cohn, (Ill.) 158 N.E. 118; Lamont v. Vinger, (Mont.) 202 P. 769; State v. Broaddus, (Mo.) 289 S.W. 792; Calif. Co. v. U.S. 299 F. 908; Okanogan v. Thompson, (Wash.) 211 P. 933; Greenwood v. Furr, 251 S.W. 332; Glowoski v. State, 153 N.E. 157; Railway Co. v. Commrs., (Mont.) 247 P. 162; Richert v. Rabun, (Colo.) 265 P. 260. Appellant was entitled to a ruling on its demurrer. 6 Ency. Pl. and Pr. 82; Greenys. v. Jonatis, 244 Ill.App. 78; Curtino v. Weeks, (Ia.) 213 N.W. 413. There was an objection on file to the authority of Cyrus O. Brown, judge of the Sixth Judicial District, to proceed in the case, undisposed of. Appellant was entitled to a ruling on this objection. McDaniel v. McElvy, (Fla.) 108 So. 820. The trial judge exceeded his authority by appropriating appellant's property by a judgment to which it was not a party; also by its order confirming the sale of appellant's property without due process of law.
For the respondent there was a brief by Curran and Cobb of Casper, Wyoming, and oral argument by William B. Cobb.
Appellant entered a general appearance. The sale order was issued prior to appellant's demurrer. The sale order was served on appellant two months prior to its demurrer. Notice of application for confirmation was also served on appellant. The sale and confirmation thereof were in accordance with law. Appellant was a party to the judgment. Kilpatrick v. Horton, 15 Wyo. 508. Appellant having made a general appearance in the cause, was by well settled principles, followed by all of the authorities, bound by all proceedings had in the case thereafter. No question is raised as to the validity of the mortgage indebtedness nor is there any contention that appellant had a valid defense. The demurrer was filed out of time and was of no effect. Bertagnolli Bros. v. Bertagnolli, (Wyo.) 148 P. 374, cited by appellant involved a judgment entered by the clerk and not a court judgment. The authorities cited by appellant did not support its contentions. The case of Thompson v. Pfeiffer, 71 P. 828, is quite similar on the facts. Appellant does not attack the validity of the judgment. The controversy has been before this court three times. 37 Wyo. 169; 38 Wyo. 223. Judge Brown presided by virtue of an order made by Judge Cromer on June 15, 1927, and no objection was ever made to the order, here appealed from. Leach v. Frederick, 36 Wyo. 121; McCoy v. Clegg, 36 Wyo. 473; Bank v. Ayers, 37 Wyo. 146. Appellant's appeal should be dismissed. Hereford Ranch v. Packing Co., 31 Wyo. 31. The better rule is omitted owner of the equity of redemption has no remedy but redemption. Kelgour v. Wood, 64 Ill. 345; Cutter v. Jones, 52 Ill. 84; Douglass v. Bishop, 27 Iowa 214; Childs v. Childs, 10 Oh. St. 339; County v. R. R. Co., 24 Wis. 93. The jurisdiction of this court is fixed by Chap. 145, Laws 1921. Appellant waived any right that it had to attack the judgment. III Jones on Mortgages, 652, 653; Coles v. Yorks, (Minn.) 31 N.W. 354.
S.E. Phelps in reply.
A confirmation order is appealable. 6369 and 6401 C. S.; Bank v. Swan, 3 Wyo. 356; Bank v. Ranch Co., 5 Wyo. 50; Anderson v. Matthews, 8 Wyo. 306; Anderson v. Englehart, 18 Wyo. 196; Weaver v. Richardson, 21 Wyo. 343; Bank v. Steinhoff, 7 Wyo. 464; Porter v. State, 16 Wyo. 131; Riffle v. Coal Co., 20 Wyo. 442. An appeal may be taken from an order or judgment without excepting thereto. 6405 C. S., 6371 C. S.; Boulter v. Cook, 32 Wyo. 461. McDonald was not entitled to notice of appeal. 6402 C. S.; Ranch v. Packing Co., 31 Wyo. 31. He made his purchase with the court records open to him, for inspection, and he is bound by what the records disclose. The records show title in appellant, and its title could not be extinguished without due process of law. Jackson v. Carroll, et al., (Okla.) 207 P. 735; 24 Cyc. 6. A mortgage is merely security and is not a conveyance. Merc. Co. v. Davis, 26 Wyo. 484. The owner must be made a party in case of foreclosure. Richards v. Thompson, (Kan.) 23 P. 106. Judge Brown is the judge in another judicial district, and a non-resident of Natrona County. The confirmation order was made outside the county where the land is situated. Eustance v. Francis, (Mont.) 157 P. 573, and was without authority. Sawyer v. Huning, (Ariz.) 181 P. 172. The judgment should be vacated under the provisions of 6371 C. S.
This is an appeal from an order dated December 17, 1928, confirming the sale of real estate. The appeal is taken by the Central Trading Company, hereinafter called "appellant."
The case was originally commenced in the District Court of Natrona County by Harriett T. Grieve as plaintiff against Paul Huber, the Central Trading Company, and others, as defendants, for the purpose of foreclosing a mortgage made and executed by Paul Huber and his wife to Harriett T. Grieve on Lots 14, 15, 16 and 17 in Block 5 in the City of Casper in order to secure the sum of $ 50,000, of which the principal sum of $ 47,500 and interest was alleged to be due. The appellant, according to the allegations of the petition, became a purchaser of the premises above described subsequent to the making and recording of the mortgage and at the time of the commencement of the action was accordingly the owner of the equity of redemption. The petition prayed for a personal judgment against Paul Huber and Alma Huber; for the foreclosure of the mortgage; that the rights of the various parties in the action be declared to be junior and inferior to the mortgage of the plaintiff and that the property be sold and the proceeds applied to the payment of the debt. On July 7, 1926, but before service of summons was made upon the appellant, a judgment and decree was entered in the case, foreclosing the mortgage, finding the amount due thereunder to be the sum of $ 54,113.25, and directing the premises to be sold for the purpose of satisfying the amount found due. A sale, made in pursuance to the foregoing judgment, was subsequently set aside. Thereafter, on June 11, 1927, summons was issued and served upon an agent of the appellant. On July 7, 1927, appellant appeared in the cause by what was called a "special appearance," objecting to the appointment of a receiver, claiming that plaintiff was not entitled to any relief against appellant, and asking that appellant be granted such general and equitable relief as might be proper in the case. On July 7, 1927, an order was entered overruling the objections, giving appellant fifteen days additional time in which to answer or otherwise plead in the case, and appointing a receiver. An appeal was taken from this order. Grieve v. Huber, 38 Wyo. 223, 266 P. 128. On that appeal this court held the appearance made by the appellant as above mentioned to be a general one. Thereafter, and on May 14, 1928, and without the appellant having filed any further pleadings in the case, the trial court made and entered a judgment and decree in the case, which, aside from the caption, reads as follows:
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