Kleiner v. O'kelley.

• Decision Date: 07 August 1917
• Docket Number: No. 1995.,1995.
• Citation: 22 N.M. 624,167 P. 1
• Parties: KLEINER ET AL.v.O'KELLEY.
• Court: New Mexico Supreme Court

22 N.M. 624

167 P. 1

KLEINER ET AL.

v.O'KELLEY.

No. 1995.

Supreme Court of New Mexico.

Aug. 7, 1917.Rehearing Denied Aug. 25, 1917.

Syllabus by the Court.

A demurrer to an entire declaration or complaint made up of separable parts must be overruled if any one of the counts or parts is good as against it.

The premature commencement of an action is not a jurisdictional matter, but is one which may be waived, as by a failure seasonably to interpose an objection upon this ground; and it is ordinarily held that, if defendant, without objection, appears and pleads to the merits of the action, he cannot thereafter object that it was prematurely commenced.

Appeal from District Court, Chaves County; McClure, Judge.

Suit by Bertha H. Kleiner and others against James M. O'Kelley, with cross-complaint by one Redwine and one Reusser. Judgment for plaintiff Kleiner and for cross-complainants against defendant, and he appeals. Affirmed.

A demurrer to an entire declaration or complaint made up of separable parts must be overruled if any one of the counts or parts is good as against it.

U. S. Bateman, of Roswell, for appellant.

H. C. Maynard and J. D. Mell, both of Roswell, for appellees.

ROBERTS, J.

On May 30, 1911, Allen A. Phillips and wife executed and delivered to the Bonded Abstract & Surety Company a promissory note for the principal sum of $2,000, due and payable May 30, 1916. The note bore interest at the rate of 10 per cent. per annum from date until paid, payable semiannually. At the same time, to secure the payment of the note and the interest as it should become due, Phillips and wife executed and delivered to said company a mortgage on lots 15, 16, and 7 and the north half of lot 8 of the El Capital View subdivision of the town of Roswell. On the same day said Phillips and wife also executed and delivered to said company other negotiable promissory notes which aggregated $3,169.14, which notes were secured by a second mortgage on said real estate. Bertha H. Kleiner, one of the appellees herein, purchased the $2,000 note, and Redwine and Reusser became the owners, respectively, of some of the notes secured by the second mortgage. On July 25, 1912, Phillips and wife conveyed by warranty deed the real estate above described to the Bonded Abstract & Surety Company. This deed was made subject to the mortgages above mentioned, which said company, under said deed, assumed and agreed to pay.

On December 18, 1912, appellant was the owner of 160 acres of land in Chaves county which was free and clear of incumbrances. On said day the Bonded Abstract & Security Company, through its general manager, agreed to exchange properties with appellant. The company executed and delivered to appellant a warranty deed for the real estate above described owned by it, which deed referred to the mortgages mentioned, and proceeded:

“Both of the afore-mentioned mortgages and interest the party of the second part assumes and agrees to pay and to hold the party of the first part harmless from any obligation thereon, both as to interest and principal.”

Appellant executed to the Bonded Abstract & Security Company a warranty deed for the 160 acres of land owned by him, and it executed to appellant a mortgage securing notes for a like amount as those outstanding against the land owned and conveyed to appellant by the Bonded Abstract & Security Company. On July 20, 1915, appellant having failed to pay the interest on the $2,000 note, Bertha H. Kleiner instituted suit in the district court of Chaves county on said note and the past-due installments of interest, and to foreclose the mortgage. The holders of the second mortgage later set up their lien.

On the 12th day of August, 1915, appellant demurred to the complaint filed by the appellee Kleiner, upon the ground that the action was prematurely brought, which demurrer was overruled. Later a demurrer was filed to the cross-complaint of Redwine and Reusser on the ground that the cross-complaint did not state a cause of action, in that it did not appear that the appellant received any consideration for his alleged assumption and agreement to pay the mortgage mentioned in said cross-complaint, which demurrer was also overruled.

Counsel for appellant states that on January 15, 1916, appellant filed his answer to the complaint of appellee Kleiner, that the answer has been omitted from the record, but that it contained, in substance, the same denials set forth in appellant's amended answer.

On March 4, 1916, a decree was entered in favor of appellant directing the sale of the mortgaged property to pay the note and interest. After the entry of the decree mentioned, appellant filed an amended answer to the complaint of appellee Kleiner, and also to the cross-complaint of Redwine and Reusser. The answer proceeded upon other grounds than that the cause of action was prematurely brought; no such issue being tendered by either of the amended answers.

On August 4th appellant filed a motion to set aside the sale and to vacate the judgment upon the ground that the principal sum of $2,000 covered by the decree of sale was not due when the order of sale was entered. This motion was overruled, and the sale was confirmed.

On September 7, 1916, after hearing proof, the court gave Redwine and Reusser judgment against appellant for the sum of $2,447.50, and also gave a deficiency judgment in favor of appellee Bertha H. Kleiner for the sum of...