Gropp v. Huyette

• Decision Date: 29 July 1922
• Citation: 208 P. 848,35 Idaho 683
• Parties: W. P. GROPP, Appellant, v. W. S. HUYETTE, ERB HARDWARE COMPANY, a Corporation, T. S. WARD, CHARLES HAHN, R. C. BEACH COMPANY, a Corporation, JOHN OLSON, A. M. VAN DYK, WALTER H. BRISTOL, VOLLMER-CLEARWATER COMPANY, a Corporation, W. PORTER SHAFER and LEWISTON GROCERY COMPANY, a Corporation, Respondents
• Court: Idaho Supreme Court

208 P. 848

35 Idaho 683

W. P. GROPP, Appellant, v. W. S. HUYETTE, ERB HARDWARE COMPANY, a Corporation, T. S. WARD, CHARLES HAHN, R. C. BEACH COMPANY, a Corporation, JOHN OLSON, A. M. VAN DYK, WALTER H. BRISTOL, VOLLMER-CLEARWATER COMPANY, a Corporation, W. PORTER SHAFER and LEWISTON GROCERY COMPANY, a Corporation, Respondents

Supreme Court of Idaho

July 29, 1922

PLEADING AND PRACTICE-WRIT OF PROHIBITION-WHEN IT WILL NOT ISSUE-MOTION TO DISMISS APPEAL-RECORD ON APPEAL-WHAT MAY BE CONSIDERED WITHOUT TRANSCRIPT OF EVIDENCE.

1. Where an inferior tribunal has jurisdiction of the parties and subject matter of an action, and is proceeding regularly to hear and determine the same, an appellate court is without jurisdiction to arrest such proceedings by a writ of prohibition, its power being limited to a review of the same after the court of original jurisdiction has decided such controversy.

2. Where an action is commenced against a sheriff and others for damages for having wrongfully foreclosed a chattel mortgage under C. S., sec. 6380 et seq., an appeal from the judgment sustaining such foreclosure proceedings will not be dismissed on the ground that after the sale, the question of its validity is res judicata.

3. An appeal will not be dismissed because the clerk below failed to certify that the judgment-roll was sent up to this court if the record contains the files which ordinarily constitute the judgment-roll, and such record is sufficient to present any question appellant seeks to have reviewed.

4. Where there is no statement, bill of exceptions or reporter's transcript properly settled in the record on appeal, it will only be examined for fundamental errors, and if in any view of the record the judgment below can be upheld, it will be affirmed.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action for damages for wrongful foreclosure of chattel mortgage. Judgment for defendants and plaintiff appeals. Affirmed.

Judgment affirmed, with costs to respondents.

Benjamin F. Tweedy, for Appellant.

While the instant action is on appeal, the judgment herein cannot be used as res adjudicata, for, so long as appeal is pending the judgment is not final. (Chambers v. Farnham, 39 Cal.App. 17, 179 P. 423; Vance v. Heath, 42 Utah 148, 129 P. 365.)

Whenever a statute, either impliedly or expressly, prohibits the maintenance or commencement of further prosecution, or commands a stay, of an action, always a writ of prohibition from supreme courts to trial courts is granted; the supreme courts enforce statutory prohibitions by writ of prohibition. The writ of prohibition is used to make trial courts proceed in accordance with statutes; such even as to the joinder of causes of action in one action and in one complaint. (Carter v. Superior Court, 176 Cal. 752, 169 P. 667; Kelsey v. Superior Court, 40 Cal.App. 229, 180 P. 662; O'Donnell v. Sixth Judicial District Court, 40 Nev. 428, 165 P. 759; Hayne v. Justice's Court, 82 Cal. 284, 16 Am. St. 114, 23 P. 125; Burke Land etc. Co. v. Wells, Fargo & Co., 7 Idaho 42, 60 P. 87.)

The writ is issued in aid of appellate jurisdiction. (32 Cyc. 623, note 51, and authority cited.)

Fred E. Butler and S. O. Tannahill, for Respondents.

This kind of sale is as conclusive between the parties as is any other judgment, and if the mortgagor permits the sale to take place without filing an action to contest it he is thereafter precluded from contesting the validity of the sale, the amount due and all defenses which he could have raised prior to the sale. (Bank of Forsyth v. Gammage, 109 Ga. 220, 34 S.E. 307; Jones on Chattel Mortgages, 5th ed., sec. 784b.)

After a default in the conditions of a chattel mortgage the absolute right of possession is in the mortgagee. (First Nat. Bank of St. Anthony v. Steers, 9 Idaho 519, 108 Am. St. 174, 75 P. 225.)

If the mortgagee was entitled to the possession of the property the mortgagor could not maintain conversion until he tendered the amount of the mortgage indebtedness. (Potter v. Lohse, 31 Mont. 91, 77 P. 419.)

LEE, J. McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

Prior to September 9, 1920, appellant was indebted to some of the respondents, and on that day signed a promissory note for $ 5,467.55, payable on demand to W. S. Huyette, trustee, for such indebtedness, and secured the same by a chattel mortgage. On September 22d thereafter, the trustee began a foreclosure of said mortgage, under the provisions of C. S., sec. 6380 et seq., and the sheriff sold all of the property covered by the mortgage on September 29th, making return which showed that after crediting the amount for which the property sold, there remained an unpaid balance in excess of $ 4,000 upon this note. On the day of the foreclosure sale, appellant commenced this action against said creditors, and joined the trustee and also the sheriff who had conducted the sale.

It is not clear from the complaint what relief is sought in this action. Among other things, the complaint alleges that appellant and Minnie Gropp have been husband and wife for more than ten years, and were at the time residents of Nez Perce County, Idaho, engaged in farming; that respondents, except the trustee and sheriff, were his creditors; that said trustee and the sheriff were at the instance and upon the order and request of such creditors maintaining the proceedings to foreclose a pretended chattel mortgage; and then pleads haec verba the notice of sheriff's sale, "affidavit for mortgage foreclosure by notice and sale," and demand for the possession of the personal property described in such affidavit. The complaint traverses most of the affirmative statements contained in the affidavit and notice of sale, and alleges that the action is to contest the right of the trustee to foreclose this mortgage, and also to recover damages from all of the respondents for such wrongful foreclosure and seizure of appellant's property described in the mortgage, and denies that he executed or delivered said note and mortgage, or any note or mortgage, or that there is any sum whatever due upon said mortgage indebtedness. From a subsequent paragraph of the complaint it appears that this denial is by way of confession and avoidance, and that appellant claims that he executed said note and mortgage conditionally, to take effect only when his wife had also executed such instruments, and further, that this note and mortgage were given to the trustee with the express agreement that they were not to be enforced according to their terms, but that appellant was to be permitted to operate the sawmill which was included in the mortgage, and to pay the indebtedness as he sold lumber and was otherwise able to pay the same out of his farm operations, but that respondents fraudulently failed to keep this part of the agreement. It is further alleged that said mortgage was filed for record, that all of the property therein described, except the lumber in the state of Washington, was community property and belonged to him and his wife, and that the other personal property, consisting of certain livestock, harness, wagons and other implements, was exempt from execution, and that the seizure and sale of the same was unlawful, and alleges its value to have been $ 11,705, and that it was unlawfully and wrongfully seized and converted by said sheriff for the use and benefit of respondents, that they maliciously and wilfully seized and took all of said property and destroyed appellants's sawmill business and damaged his credit and financial standing, that neither the notice of the sheriff's sale nor the affidavit of foreclosure states the amount due on said mortgage, and that such notice and affidavit are insufficient, and prayed for relief as follows:

"Wherefore, the plaintiff demands judgment against the defendants in the sum of twenty thousand dollars and for all his costs and disbursements also that said note and mortgage were never delivered, that fraud was practiced upon the plaintiff, and that the said foreclosure proceedings are null and void and for all relief to which plaintiff is entitled against...