Kriv v. Northwestern Securities Co.

• Court: Iowa Supreme Court
• Citation: Kriv v. Northwestern Securities Co., 237 Iowa 1189, 24 N.W.2d 751 (Iowa 1946)
• Decision Date: 12 November 1946
• Docket Number: 46918.
• Parties: KRIV v. NORTHWESTERN SECURITIES CO. et al.

24 N.W.2d 751

237 Iowa 1189

KRIV v. NORTHWESTERN SECURITIES CO. et al.

No. 46918.

Supreme Court of Iowa

November 12, 1946

R. B. Pike and F. W. Lohr, of Sioux City, for appellant.

Shull & Marshall, Baron & Bolton, Gleysteen, Harper &amp Sinclair, all of Sioux City, for appellees.

GARFIELD Chief Justice.

Since the trial court held plaintiff's petition should be dismissed, under the uncontroverted facts stated in all the pleadings, a summary of the essential fact allegations of the pleadings seems necessary.

Plaintiff's petition, filed in April, 1944, alleges she is the owner of a bond for $1,000, of a total of $85,000 issued in 1929 secured by a trust deed upon real estate in Sioux City; in April, 1934, the trustee brought suit to foreclose the trust deed because the bonds were in default; in October, 1934 judgment was entered for $97,551, plus $1,015 attorney fees and costs, 'and for the sale under special execution of the mortgaged real estate'; in November, 1934, the real estate was sold under special execution to the trustee for $76,059 which was credited on the judgment; in November 1935, sheriff's deed for the property was issued to the trustee; in June, 1939, the trustee, 'upon order of court authorizing and directing a sale, made a pretended conveyance of the real estate to defendant, Northwestern Securities Company, for an alleged consideration of $43,750'; such conveyance was void because 'the trust deed granted the trustee no power of sale, * * * no notice of the proceedings looking to a sale of the premises was served upon plaintiff and the other bondholders,' and for other similar reasons which need not be stated here; plaintiff is the equitable owner of the real estate to the extent of her interest in the bonded debt; the names of the other bondholders are unknown to plaintiff but they should be ascertained and brought into the case so the property may be partitioned or sold and the proceeds divided. Copy of the trust deed which contains the form of bond is set out as part of the petition. Plaintiff prays for partition, the quieting of her title and such other relief as may be equitable.

Defendant, Northwestern Securities Company, and other defendants who disclaim any interest in the property admit in their answer most of the above fact allegations but deny plaintiff's conclusions that the deed to the Northwestern was void and that she is the equitable owner of an interest in the property. Defendants further allege the decree of foreclosure of the trust deed authorized the trustee to bid in the property at the foreclosure sale, to receive the certificate of sale and, in the event of no redemption, the sheriff's deed, for the use and benefit of the bondholders in the proportion that the claim of each bondholder bears to the total debt.

The answer further alleges that on February 24, 1939, the trustee filed application in the foreclosure proceedings stating that one of the bondholders had in turn filed application therein asking the trustee to sell the property and the trustee believes the court should authorize him to advertise it for sale; the trustee's application was submitted to the court who directed the trustee to advertise that he would accept sealed bids on the property at a named place on March 4, 1939; the trustee gave notice of said order, as required by the court, by publication in the Sioux City Tribune and Sioux City Journal and proof of such publication was duly filed; on March 6, 1939, the trustee filed application for authority to sell the property, stating that all the bondholders were not known and it would be impossible to secure personal service on all of them and asking that time and place of hearing on the application and the kind of notice be prescribed; the court fixed the time and place of hearing and provided for notice by three publications in the Sioux City Journal at least ten days before such time; notice was published as directed and proof of publication filed; the court found it was for the best interests of all concerned that the trustee sell the property and such sale was authorized; the court prescribed further notice of the sale by two publications in the Sioux City Journal at least five days before the sale; the sale was postponed for a week by the court who ordered a further publication of the notice of sale, which was given; a bid of $43,750 from the Northwestern Securities Company was received by the trustee and reported to the court, who authorized the acceptance of the bid; the sale and deed were reported to the court and approved and the purchase price was paid. The answer asks that plaintiff's petition be dismissed and the title of the Northwestern be quieted.

Plaintiff's reply to the foregoing answer does not deny any of the fact allegations above summarized and they are therefore deemed admitted. Rule 102. (All references to Rules are to Rules of Civil Procedure.) The reply does reiterate the conclusion stated in the petition that the sale to the Northwestern was void because no notice thereof was served upon the bondholders and their title could not be divested by a notice published in the newspapers.

Defendant Northwestern Securities Company filed its verified motion for summary judgment under Rules 237, 238. Said defendant and other defendant (the principal other defendant is the present holder of a mortgage against the property) filed application under Rule 105 for adjudication of law points. In this application they also moved for judgment under the uncontroverted facts stated in all the pleadings, pursuant to Rule 222. These motions assert that the only issue in the case is one of law, viz., whether what was done under the foreclosure proceedings conveyed good title to the Northwestern and this issue should be determined by rulings on the motions.

The court in effect held that the only issue in the case was the law question stated by defendants. This issue was determined in favor of defendants, the motions for summary judgment and for judgment on the pleadings were sustained and plaintiff's petition was dismissed. While upon this appeal plaintiff asserts a number of errors, the two principal contentions are that (1) the court erred in deciding the case without a trial on the merits by sustaining defendants' motions, and (2) the sale by the trustee is void because the published notices were insufficient to confer jurisdiction upon the court to order the sale.

It was of course proper for the trial court to rule on defendants' motions and, if the law question therein presented was correctly decided, plaintiff was not entitled to a trial upon the merits.

Rule 237, so far as applicable here, states:

'Summary judgment may be entered in an action, upon any claim therein, which is either: * * *

'(e) to quiet or settle title to real estate or any interest therein.'

Rule 238 provides in part: 'Plaintiff making a claim described in rule 237 may file a motion for summary judgment thereon at any time after defendant appears, before or after answer. He shall support the motion by affidavit of himself or some person with personal knowledge of the facts, verifying the claim * * * and his belief that no defense exists agaisnt it. * * * Judgment shall be entered as prayed in the motion unless within ten days after it is filed, or such other time as the court may, for good cause, allow, the defendant resists it with affidavits showing facts which the court deems sufficient to permit him to defend.'

Insofar as the Northwestern asked in its answer that its title be quieted, clearly such claim was one 'to quiet or settle title to real estate' within Rule 237. Rule 238 from which we have quoted designates a 'Plaintiff making a claim described in rule 237' as the proper party to move for summary judgment. The Northwestern alleged in its motion for summary judgment and the trial court held that insofar as it sought to have its title quieted it was a 'plaintiff' entitled to move for summary judgment under Rules 237, 238. We approve this holding.

While a 'plaintiff' is ordinarily the party who initiates the action by filing the petition, a defendant who seeks affirmative relief by cross-action is frequently held to be a plaintiff for such purpose. Such a party is a 'plaintiff' with regard to his counterclaim in the sense that he is the claimant or moving party who has asserted a cause of action. And with respect to that cause of action, the party against whom relief is sought is a defendant. 32 Words and Phrases, Perm.Ed., pp. 605-607; 48 C.J. 1219. See also Grimes v. Kelloway, 204 Iowa 1220, 1226, 216 N.W. 953.

The construction we have given Rule 238 is consistent with and makes effective the language of Rule 237 that 'Summary judgment may be entered in an action, upon any claim therein, which is * * * to quiet or settle title to real estate * * *.' (Italics supplied.)

The Northwestern filed its motion for summary judgment on November 28, 1945. The motion was submitted on December 21, 1945, and the rulings of the court were made on December 29. Plaintiff filed no resistance to the motion until December 22, 1945. Perhaps the court might have entered judgment as prayed in the motion because plaintiff failed to file resistance within ten days. (The court allowed no further time for filing such resistance.) See Rule 238 from which we have quoted. However, so far as shown, defendants sought no relief in the trial court because of delay in filing plaintiff's resistance, the trial court's ruling was not placed upon such ground and we do not feel justified in deciding the case on a question apparently not raised in the court below.

As stated not only did the Northwestern invoke Rules 237, 238, pertaining to motions for summary judgment, but defendants also...