Houck v. Hult

• Decision Date: 18 November 1932
• Docket Number: 6801.
• Citation: 245 N.W. 469,60 S.D. 570
• Parties: HOUCK v. HULT et al.
• Court: South Dakota Supreme Court

245 N.W. 469

60 S.D. 570

HOUCK v. HULT et al.

No. 6801.

Supreme Court of South Dakota

November 18, 1932

Appeal from Circuit Court, Clay County; R. B. Tripp, Judge.

Proceeding by J. R. Houck against Walter Wallace Hult and others. From order granting defendants new trial, plaintiff appeals.

Affirmed.

O'Keefee & Stephens, of Pierre, for appellant.

Bogue & Bogue, of Parker, for respondents A. N. and Mathilda Anderson.

Gunderson & Gunderson, of Vermilion, for respondent Hult.

RUDOLPH J.

In 1920, the defendant Anderson agreed to purchase from the defendant Hult certain lands in Clay county. On March 1 1921, the sale was consummated, and at that time Anderson gave to Hult two notes in the sum of $5,000 each, and secured the same by a mortgage on the Clay county land. One of the notes was due March 1, 1922, and the other was due March 1 1923. Subsequent to the Anderson-Hult transaction, Hult made a contract with the plaintiff for the purchase of certain land in Potter county, S.D. In this contract it was provided that the two notes, which Anderson had given to Hult in the sum of $5,000 each, secured by a real estate mortgage upon the land in Clay county, were to be assigned by the defendant Hult to the plaintiff in part payment of the Potter county land. Hult did not comply with the terms of his contract to purchase the Potter county land, and, in 1921, the plaintiff commenced an action in Potter county against the defendant Hult for the specific performance of this contract. At the time this Potter county action was commenced, the plaintiff filed in the office of register of deeds of Clay county, S D., a notice of lis pendens stating "that the purpose of said action is in part to require the defendant to specifically perform his contract, to assign to the plaintiff a certain mortgage given to secure the payment of one note of Five Thousand Dollars ($5,000) due on or before March 1 1922, and one note of Five Thousand Dollars ($5,000) due on or before March 1, 1923, which mortgage is upon (the Clay County land)." On October 16, 1922, a judgment was rendered in the Potter county action against the defendant Hult, and in this judgment it was provided that Hult was to assign, transfer, and deliver to plaintiff the two $5,000 notes, and the mortgage securing them. Hult never complied with this judgment. On the 27th day of October, 1922, there was filed in the office of register of deeds of Clay county a satisfaction of mortgage signed by the defendant Hult, dated June 9, 1922, and acknowledged November 2, 1922, purporting to satisfy the Anderson mortgage given upon the Clay county land. On the 26th day of May, 1925, there was filed with the register of deeds of Clay county another satisfaction of mortgage signed by the defendant Hult, dated the 25th day of May, 1925, and acknowledged the 25th day of May, 1925, purporting to satisfy the same Anderson mortgage upon the same land.

This present proceeding was commenced in 1927 in the circuit court of Clay county seeking the cancellation and the setting aside of the two satisfactions of mortgage. The plaintiff alleges that the said satisfactions were executed as the result of a conspiracy between the defendants Anderson and Hult for the purpose of defeating the judgment and decree of the circuit court of Potter county, wherein it was provided that the said Hult should assign the said notes and mortgage, and for the further purpose of defeating the plaintiff in the collection of the mortgage debt; also that the satisfactions were received by the defendants Andersons with knowledge of the Potter county judgment. The complaint further alleges that the defendants Andersons have, in fact, never paid anything upon these notes and mortgage, and that the mortgage at this time remains wholly unsatisfied, and asks for a foreclosure of the mortgage for the benefit of the plaintiff. The defendants answered, and issue was joined upon the issues raised by the complaint. The case was tried in the circuit court of Clay county before the court without a jury, and the court made findings of fact, conclusions of law, and entered judgment in favor of the plaintiff. Thereafter the defendants made a motion for a new trial, which was granted by the trial court. The order granting the new trial was before this court in the case of Houck v. Hult, 235 N.W. 512. The trial court, as a result of the opinion and order of this court, entered nunc pro tunc, as of the date of his previous order granting a new trial, another order purporting to comply with the letter and spirit of rule 30. Thereafter the plaintiff made a motion in this court seeking to have the judgment of the lower court affirmed for the alleged reason that the nunc pro tunc order entered by the trial court did not comply with the prior order of this court. This motion was brought on for hearing by an order to show cause, and, after a hearing, the motion was denied. The matter is now before us on its merits; the plaintiff having appealed from the order granting a new trial.

The appellant by his first assignment of error attempts to raise the propriety and authority of this court in ordering the entry of the nunc pro tunc order, referred to above. We are of the opinion that the propriety and authority of this court to enter that order was fully determined upon the former appeal. We rely upon the disposition made in the former opinion. The appellant also seeks to attack the sufficiency of the nunc pro tunc order. The sufficiency of this order was before this court upon the hearing of the motion, and we are not inclined to dispose of the matter any different at this time than it was disposed of by the order entered upon the motion.

The second assignment of error, in effect, goes to the merits and challenges the authority of the trial court to grant a new trial. One of the reasons of the trial court for granting a new trial was the insufficiency of the evidence to...