Gronseth v. Brubakken

• Decision Date: 17 December 1929
• Docket Number: No. 6793.,6793.
• Citation: 228 N.W. 189,56 S.D. 230
• Parties: GRONSETH v. BRUBAKKEN et al.
• Court: South Dakota Supreme Court

56 S.D. 230

228 N.W. 189

GRONSETH

v.BRUBAKKEN et al.^*

No. 6793.

Supreme Court of South Dakota.

Dec. 17, 1929.

Appeal from Circuit Court, Marshall County; Robert D. Gardner, Judge.

Action by Thomas Gronseth against John O. Brubakken and others for foreclosure of a mortgage. From an order appointing a receiver, defendants appeal. Affirmed.Otto L. Kaas, of Britton, for appellants.

M. J. Staven, of Britton, and C. A. Wells, of Webster, for respondent.

MISER, C.

This appeal is from an order appointing a receiver in an action to foreclose a real estate mortgage. The defendants Brubakken, appellants herein, are John O. and Guri, his wife, Eric, their son, and Kari, his wife. This action is the third of a series prosecuted by respondent. From the showing upon which the receiver was appointed, it appears that, in 1916, John O. and Guri executed and delivered their real estate mortgage to respondent's assignor. In 1926, respondent obtained judgment of foreclosure in action No. 1 against John O. and Guri, and bid in the property at foreclosure sale. At the expiration of the year of redemption, a sheriff's deed thereon was issued to respondent.

When respondent demanded possession, Eric, not being a party to action No. 1, refused to surrender possession, claiming to be the owner in fee simple. Respondent then began action No. 2. As begun, this was an action in justice court for forcible detainer. Defendant Eric, in his answer thereto, set up title in himself, alleged that he had not been made a party to foreclosure action No. 1 and had never been given a chance to assert his title in court as against respondent, and asked to have the case certified to circuit court, and that he be given judgment against respondent. In circuit court, respondent replied, setting up his ownership of the mortgage and judgment of foreclosure thereof in action No. 1, and asked the court to determine all issues between plaintiff and Eric and either decree that Eric had no interest in the premises and direct delivery of the possession of the premises by him to plaintiff or open the foreclosure proceedings to make Eric a party thereto, and, pending the foreclosure action, that a receiver be appointed.

Action No. 2 was tried by the Hon. W. N. Skinner, circuit judge. Judgment was entered therein adjudging that Eric was the owner in fee simple of the premises, that plaintiff, as against Eric, had no right to the possession of the premises, and denying plaintiff's application for a receiver.

Thereafter, the present action No. 3 was started against the four Brubakkens heretofore named. In this complaint plaintiff, appellant herein, alleged the execution, delivery, default, and due foreclosure by action No. 1 of the mortgage and the purchase of the mortgaged premises by appellant. Appellant also alleged Eric's refusal to surrender possession, the beginning of action No. 2, and its trial. Appellant also alleged that, in action No. 2, “the court found that the said Eric Brubakken was residing on said premises under an unrecorded deed at the time foreclosure action was commenced, and at the time of execution sale, and was not foreclosed of any rights he might have had.” In his complaint in action No. 3, respondent asked that he be permitted to reopen action No. 1, that Eric and Kari be made parties defendant, that all defendants be foreclosed of any right in the premises, and that, pending foreclosure, a receiver be appointed.

On this complaint and a supplemental showing on behalf of plaintiff, the defendants setting up the judgment, decision, and pleadings in action No. 2 in resistance thereto, Hon. Robert D. Gardner granted plaintiff's motion for the appointment of a receiver pending foreclosure.

This appeal is from the order made by Judge Gardner appointing a receiver in action No. 3, which order was made only 17 days after the order made by Judge Skinner denying the application for the appointment of a receiver in action No. 2. The only question raised by the appeal-assuming the sufficiency of the assignment of error-and the only question argued, is whether the...