Larson v. Jacobson

• Decision Date: 24 April 1926
• Citation: 208 N.W. 833,54 N.D. 69
• Court: North Dakota Supreme Court

208 N.W. 833

54 N.D. 69

W. A. LARSON, Appellant, v. PAUL JACOBSON, Respondent

Supreme Court of North Dakota

April 24, 1926

Appeal from the District Court of Nelson County, Cole, J.

From an order dissolving an order enjoining the foreclosure of a real estate mortgage by advertisement the plaintiff appeals.

Affirmed.

E. G Larson and Crum & Crum, for appellant.

"It was the intention of the legislature that an injunction shall be granted if a defense is set forth in the petition, and that the matters in controversy and the truth of the defense shall be settled and determined upon the trial of an action to foreclosure, rather than upon affidavits on an order to show cause." Beiseker v. Svendsgaard, 28 N.D 366.

E. C Boostrom and Divet, Holt, Frame & Thorp, for respondent.

"Successive injunctions upon different grounds which might be put at issue in one proceeding should not be allowed where no sufficient reason why the grounds were not urged on the first application for an injunction is shown; and neither ignorance of the law nor of the facts will present any excuse for failure to present such grounds." 32 C. J. p. 74, § 59; Eminent Household, C. W. v. Thornton (Ga.) 70 S.E. 666; Schwartz v. Siekmann (La.) 66 So. 770.

NUESSLE, J. CHRISTIANSON, Ch. J., and BIRDZELL, BURKE, and JOHNSON, JJ., concur.

OPINION

NUESSLE, J.

This is an appeal from an order of the district court of Cass county vacating an injunction issued pursuant to § 8074, Comp. Laws 1913.

Defendant Jacobson had a second mortgage on real estate. Plaintiff bought this real estate subject to defendant's mortgage. On June 4th, 1925, Jacobson began foreclosure of his mortgage by advertisement, the sale being set for July 14th, 1925. The amount claimed to be due at date of sale was $ 6,854.77. On June 30th Larson applied to Judge Cole, one of the judges of the first judicial district, for an order enjoining the foreclosure by advertisement and directing that all further proceedings be had by action in the district court. Larson set out as grounds for this order: First, that the defendant had not complied with the statutory requirement as to the giving of thirty days' notice of intention to foreclose; Second, that he had a counterclaim against and a partial defense to the collection of the mortgage debt. Judge Cole issued the order. Thereafter Jacobson procured an order directed to Larson requiring him to show cause why the injunctional order should not be vacated. Jacobson made a showing by affidavit in support of this order to show cause setting out that the statutory notice of intention to foreclose had been given as required and conceding the partial defense and counterclaim to the collection of the mortgage debt, claimed by Larson. On the return day both parties appeared. No objection was offered to a consideration of the matter by the district court, and after hearing, the injunctional order was vacated and the defendant was permitted to proceed with his foreclosure by advertisement for the amount of the mortgage debt less the amount claimed by Larson as a counterclaim and defense. Thereafter, and on July 13th, 1925, Larson applied to Judge Englert, also a judge of the first judicial district, for an order enjoining the foreclosure. In his supporting affidavit he again set out that no notice of intention to foreclose had been given as required by the statute, and also set out that he had further counterclaims and defenses to the extent of $ 600. He did not advise Judge Englert of the prior application and the proceedings thereafter had before Judge Cole. Judge Englert granted the injunctional order as prayed. Thereafter, and on July 14th this order was served upon the defendant and the sheriff charged with the duty of making the sale. Jacobson at once applied to Judge Cole for an order vacating the order made by Judge Englert. He did this with Judge Englert's consent, having advised Judge Englert of the prior proceeding before Judge Cole. In his application to Judge Cole for a vacation of Judge Englert's order, defendant again set up facts tending to show that the notice of intention to foreclose had been given as required by the statute, and admitted the further counterclaim and defense to the extent of $ 600 as claimed by Larson in his affidavit and application to Judge Englert. Whereupon Judge Cole vacated the order issued by Judge Englert, on condition that the amount of the defendant's mortgage claim be reduced to $ 3,900 and interest, thus taking into account and allowing all of the alleged counterclaims and defenses of Larson against the collection of the mortgage debt. This appeal is from the order of Judge Cole thus issued.

Section 8074, Comp. Laws 1913 reads as follows:

"When the mortgagee or his assignee has commenced proceedings for the foreclosure of a mortgage by advertisement and it shall be made to appear by the affidavit of the mortgagor, his agent or attorney to the satisfaction of a judge of the district court of the county where the mortgaged property is situated, that the mortgagor has a legal counterclaim or any other valid defense against the collection of the whole or any part of the amount claimed to be due on such mortgage, such judge may by an order to that effect enjoin the mortgagee or his assignee from foreclosing such mortgage by advertisement and direct that all further proceedings for the foreclosure be had in the district court properly having jurisdiction of the subject matter; and for the purpose of carrying out the provisions of this section service may be had upon the attorney or agent of the mortgagee or assignee."

This section contemplates that the order therein provided for shall be made on ex parte application. Beiseker v Svendsgaard, 28 N.D. 366, 149 N.W. 352; McCann v. Mortgage, Bank & Invest. Co. 3 N.D. 172, 54 N.W. 1026. Whether or not it shall be granted rests within the sound judicial discretion of the judge, and the exercise of such discretion will not be disturbed except in case of abuse. Beiseker v. Svendsgaard, supra, and cases cited. The purpose of § 8074 is to enable a mortgagor who claims a complete or partial defense or counterclaim to or against the mortgage debt to have his claim tried and determined in a judicial proceeding. McCarty v. Goodsman, 40 N.D. 220, 168 N.W. 721; Beiseker v. Svendsgaard, supra; Scott v. District Ct. 15 N.D. 259, 107 N.W. 61; McCann v. Mortgage, Bank & Invest. Co. su...