Hoppin v. First Nat. Bank

• Decision Date: 02 May 1899
• Docket Number: 1,550.
• Citation: 56 P. 1121,25 Nev. 84
• Parties: HOPPIN v. FIRST NAT. BANK OF WINNEMUCCA.
• Court: Nevada Supreme Court

56 P. 1121

25 Nev. 84

HOPPIN v. FIRST NAT. BANK OF WINNEMUCCA.

No. 1,550.

Supreme Court of Nevada

May 2, 1899

Appeal from district court, Humboldt county; A. E. Cheney, Judge.

Action by Maria P. Hoppin, executrix of John H. Hoppin, deceased against the First National Bank of Winnemucca and others, to foreclose a mortgage. From a decree for plaintiff, and from an order denying a new trial, the bank appeals. Reversed.

R. M Clarke and H. Warren, for appellant.

D. S Truman, for respondent.

BELKNAP J.

The respondent, at the proper time, interposed a motion to discharge from the record the statement on motion for a new trial, assigning as a reason therefor that the notice of motion for a new trial was not given by the attorney of record of the appellant. The record discloses the fact that the original answer of the appellant was signed by W. S. Bonnifield, Esq., as its attorneys. Thereafter the appellant filed certain amendments to its answer, signed by Robert M. Clarke and H. Warren, Esqs., as its attorneys. The decree recites that Clarke and Warren appeared as the attorneys for appellant. The notice of motion for new trial and the statement on motion for a new trial were signed by Clarke and Warren as the attorneys for the appellant, and stipulations were entered into by and between the respondent's attorney and Clarke and Warren as the attorneys for the appellant, respecting the suit. In the absence of any notice or order of substitution, where the record discloses the fact that certain attorneys have been acting for a party all through the case, and have been recognized as such by the court and counsel of the adverse party, it cannot be said that they are not attorneys of record in the action. Livermore v. Webb, 56 Cal. 489; Roussin v. Stewart, 33 Cal. 208; 2 Enc. Pl. & Prac. 636. The cases cited by the respondent in support of his contention show a state of facts different from the one shown in the record in the case at bar, and, in a proper case, would apply.

The respondent also asks us to strike out of the record certain affidavits in support of the motion for new trial, offered under the fourth subdivision of section 3217 of the General Statutes. This motion must prevail. The affidavits are not shown, by the indorsement of the judge or clerk, to have been read or referred to on the hearing of the motion, as required by the express terms of that section, and are, therefore, no part of the record. Id.§ 3219; Dean v. Pritchard, 9 Nev. 232; Albion Consol. Min. Co. v. Richmond Min. Co., 19 Nev. 225, 8 P. 480. We do not see how, under the provisions of this act, this requirement could be avoided by incorporating the affidavits in the body of the statement on motion for new trial, as such procedure is unauthorized, and the affidavits were not properly a part of, and could not be properly made a part of, such statement.

We come now to a discussion of the merits made upon the record after the elimination of the affidavits. The action was brought by the respondent to recover a judgment of foreclosure against the defendant Thaddeus L. Hoppin et al. of a certain mortgage upon real estate in Humboldt county. The mortgage was made and executed by Thaddeus L. Hoppin and Luella V. Hoppin to secure the payment of a certain note for $10,000, of date January 27, 1891. The mortgage bears date of January 28 1891, and was recorded on the 7th day of March, 1894, in Humboldt county. Luella V. Hoppin was not made a party to the action. The appellant, the First National Bank of Winnemucca, set up by answer an indebtedness due it, secured by a deed executed as a mortgage upon the same real estate by T. L. Hoppin & Co., a co-partnership, claimed to consist of Thaddeus L. and Luella V. Hoppin. It is also claimed by the answer that the real estate was the property of the co-partnership, and that the indebtedness was co-partnership indebtedness. The other defendants to the action, upon their answers, and by the decree of the court, are eliminated from the case. Upon the trial of the issues made by the complaint and the answer of the appellant, the court decreed a foreclosure of a mortgage of the respondent, and the sale of the mortgaged property to satisfy the mortgage debt, together...