Iowa-Des Moines Nat. Bank & Trust Co. v. Alta Casa Inv. Co.

• Decision Date: 17 November 1936
• Docket Number: 43658.
• Parties: IOWA-DES MOINES NAT. BANK & TRUST CO. v. ALTA CASA INV. CO. et al. (HUISKAMP et al., Interveners).
• Court: Iowa Supreme Court

269 N.W. 798

222 Iowa 712

IOWA-DES MOINES NAT. BANK & TRUST CO. v. ALTA CASA INV. CO. et al. (HUISKAMP et al., Interveners).

No. 43658.

Supreme Court of Iowa.

November 17, 1936

Appeal from District Court, Polk County; Russell Jordan, Judge.

Application for extension of redemption period under Moratorium Act of the 46th General Assembly. chapter 110, also known as House File No. 84. Lower court denied the extension. Opinion states the facts.

Affirmed.

Lloyd H. Williams, of Des Moines, for appellant Alta Casa Inv. Co.

James B. Weaver, of Des Moines, for appellee, Iowa-Des Moines Nat Bank & Trust Co.

Gamble, Read & Howland, of Des Moines, for appellee N.M Wilchinski.

Kelly, Shuttleworth & McManus, of Des Moines, for appellees James H. Huiskamp, Jr., W. A. Logan, Carleton Beh, and R. M. Borden.

MITCHELL, Justice.

On October 16, 1934, the Iowa-Des Moines National Bank & Trust Company, trustee, filed a petition of foreclosure in the office of the clerk of the district court of Polk county, Iowa. On the 18th day of January, 1935, decree and judgment was entered in favor of plaintiff and against Alta Casa Investment Company, in the approximate amount of $48,150.43, plus attorneys' fees and costs.

Special execution was issued on January 22, 1935, and the mortgaged property was sold at sheriff's sale on March 2, 1935, for the sum of $36,000, to the State Central Savings Bank of Keokuk, Iowa, trustee. Sheriff's certificate of sale was duly issued to the purchaser. On March 2, 1936, the defendant Alta Casa Investment Company filed application for extension of the period of redemption under the Moratorium Act of the 46th General Assembly, chapter 110, also known as House File No. 84. On March 3, 1936, the court made and entered of record an order, setting down for hearing on March 7, 1936, said application for extension of the period of redemption, and in said order prescribed notice to the plaintiff by delivery of a true copy of said order to plaintiff's attorney. On March 6, 1936, the interveners in this case made application for the right to intervene, claiming to be the holders of the sheriff's certificate. Permission was granted by the court, and on the same day interveners filed a resistance to the application of the Alta Casa Investment Company, claiming lack of jurisdiction of the district court to extend the period of redemption, and also alleging lack of equity in the defendant by reason of insolvency and lack of beneficial interest in the property. On March 7, 1936, all parties being represented, the matter was presented to the court. On March 24, 1936, the court denied the application of defendant for extension of the period of redemption and held that it had no jurisdiction to grant said extension. The Alta Casa Investment Company, being dissatisfied with the decree of the lower court, has appealed to this court.

The facts in the case at bar which raise the legal question to be decided by this appeal are simple and not involved.

The period of redemption from the sheriff's sale expired on March 2, 1936. On that day appellant filed an application for extension of the period of redemption under the provisions of chapter 110 of the laws of the 46th General Assembly. No order of court was entered on that day and no notice was given. On the following day, March 3d, which was after the expiration of the period of redemption, the appellant secured an order of court, setting down the application for hearing on March 7, 1936, and gave notice as provided in said order. The sole question presented by this appeal is: " Did the court, under these facts, have jurisdiction to entertain the application for extension of the period of redemption under chapter 110 of the laws of the 46th General Assembly?"

In the case of Metropolitan Life Insurance Company of City of New York v. Reimer, 220 Iowa 1162, at page 1165, 263 N.W. 826, 827, this court said: " It must be kept in mind that in the applications which the appellants filed they were asking for an extension of the redemption period and were not asking for a continuance of the case. They specifically state that they are brought under chapter 179 of the Acts of the 45th General Assembly, which is the redemption statute, and their right to the relief asked is based entirely upon that statute. If chapter 179 gave them the right to an extension of the redemption period, then the relief should have been granted, but if under the plain terms and provisions of the statute this right was not given, the lower court was correct in denying the relief...