Kilmer v. Gallaher

• Decision Date: 29 January 1902
• Citation: 88 N.W. 959,116 Iowa 666
• Parties: J. W. KILMER v. D. W. GALLAHER AND FRANCES E. GALLAHER, Appellants, and Another Case
• Court: Iowa Supreme Court

88 N.W. 959

116 Iowa 666

J. W. KILMER v. D. W. GALLAHER AND FRANCES E. GALLAHER, Appellants, and Another Case

Supreme Court of Iowa, Des Moines

January 29, 1902

Appeal from Harrison District Court.--HON. G. W. WAKEFIELD, Judge.

PLAINTIFF brought an action of foreclosure against defendants on a mortgage of real estate which secured a bond payable in installments. The action was for judgment for the first installment only. A decree was rendered ordering the sale of the mortgaged property for the payment of such installment but expressly making the sale subject to the other installments not then matured. Defendants appealed from the decree, and in this court such modification was made as to give plaintiff an option (1) to have any sale made stand free and clear of any lien for subsequent installments; or (2) to have such sale set aside, and a new special execution issue for the sale of the land for the amount due on the judgment only, free of any lien for other installments. After the rendition of the opinion by this court, plaintiff took a deed under the sale which had been theretofore made, and brought an action of forcible entry and detainer against defendants. Defendants then instituted proceedings in equity against plaintiff, through which they sought to redeem from the sale to plaintiff. Later, plaintiff, by application filed in the original action, asked that the sale to him be set aside. This proceeding and the equitable action by the Gallahers against plaintiff were consolidated and tried together in the district court. Upon a hearing the sale was set aside, and on plaintiff's further application he was given judgment for two other installments of the debt, which had matured since the first judgment was rendered. Special execution was ordered for the sale of the land, or so much thereof as would satisfy the whole amount of the judgment in plaintiff's favor. The decree also provided for a lien for future installments upon any surplus there might be after satisfying the judgments, and concluded with a provision to the effect that, as the Gallahers had theretofore appealed from the first decree, they had by such action forfeited their right of redemption; and each of them was, in terms, barred from the exercise of such right as to sales made for present judgments or future installments. The Gallahers appeal.--Modified.

AFFIRMED.

W. H Killpack and H. L. Robertson for appellants.

Roadifer & Arthur for appellee.

OPINION

WATERMAN, J.

I.

The option given plaintiff in the opinion rendered by this court (107 Iowa 676) was to be determined by him in a new decree, which we think it was contemplated should be entered. His action, therefore, in taking a deed, and instituting proceedings to oust defendants from the premises in dispute, while illadvised, did not amount to an election on his part to have the sale stand. The opinion there recites that the case is remanded for further proceedings. No further proceedings were necessary, if the option was determinable alone by plaintiff's acts, and he desired the sale to stand. Another reason for giving this construction to the opinion is that it was important the rights of the parties should be preserved of record, and this could not be done, save by a new decree.

II. Error is charged in the action of the trial court in rendering judgment on installments of the debt which were not due when the original action was begun, or judgment therein rendered. By the terms of the first decree the cause was continued after judgment was rendered on the installment of the debt then due, for the purpose of giving judgment on the other installments as they matured. This provision was not changed on appeal. There was therfore no error in proceeding in the main action as was done. It is charged, however, that the subsequent judgments were rendered without notice to defendants. The decree recites that defendants...