Liberty Nat. Bank of Dickinson v. Daly

• Decision Date: 04 June 1959
• Docket Number: No. 7815,7815
• Citation: 96 N.W.2d 897
• Parties: LIBERTY NATIONAL BANK OF DICKINSON, Dickinson, North Dakota, a corporation, Plaintiff and Respondent, v. Stasia DALY, E. F. Daly, also known as Ed. F. Daly, Chris Grenz, Rose Grenz, Emma McKeever, Leo McKeever and Elsie McKeever, Defendants, Stasia Daly and E. F. Daly, also known as Ed. F. Daly, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 897

96 N.W.2d 897

LIBERTY NATIONAL BANK OF DICKINSON, Dickinson, North Dakota, a corporation, Plaintiff and Respondent, v. Stasia DALY, E. F. Daly, also known as Ed. F. Daly, Chris

Grenz, Rose Grenz, Emma McKeever, Leo McKeever and

Elsie McKeever, Defendants,

Stasia Daly and E. F. Daly, also known as Ed. F. Daly,

Defendants and Appellants.

No. 7815.

Supreme Court of North Dakota.

June 4, 1959.

Syllabus by the Court.

1. In an action against mortgagors to foreclose a real estate mortgage other persons who signed the note secured but not the mortgage and who have no interest in the mortgaged property are not indispensable parties to the action.

2. A motion for a summary judgment in a state court is not the proper method of raising and presenting the question of whether an action is removable to federal court because of diversity of citizenship.

3. The exercise of the broad discretion vested in a trial court to grant or deny a motion to reopen the case after all parties have rested will not be disturbed by an appellate court in the absence of a showing of a clear abuse of such discretion.

Murtha & Murtha, Dickinson, for plaintiff and respondent.

William E. Heller, Bismarck, for defendants and appellants.

MORRIS, Judge.

On February 18, 1952 Stasia Daly was the owner of a one-fourth interest in two lots in the city of Dickinson, Stark County, North Dakota. On that date she and her husband Ed. F. Daly executed and delivered a mortgage to The Liberty National Bank of Dickinson on all of her interest in these lots to secure a joint and several note dated February 18, 1952, due August 18, 1952, in the sum of $5,000. This note was signed by the mortgagors and also by Chris Grenz and Rose Grenz.

This action was commenced on January 17, 1958 to foreclose the mortgage. The Dalys and the Grenzes were named as defendants. The only parties served with process were Stasia Daly and her husband. Chris Grenz and Rose Grenz were residents of the state of Montana and not having been served in the state of North Dakota the action proceeded to trial without them. The answer of the Dalys sets up a general denial and a nebulous counterclaim against the plaintiff alleging an agreement on the part of the plaintiff to furnish a substantial amount of abstract business and credit to the defendants and that by reason of the failure of the plaintiff to carry out its agreement the defendants have suffered embarrassment, shame, damage to credit standing and substantial loss of wages and profits.

The answering defendants made a motion for a summary judgment of dismissal on these grounds: (1) because jurisdiction was not obtained of Chris Grenz and Rose Grenz who were indispensable parties and (2) because the action was improperly and improvidently brought and was properly justiciable in the district court of the United States. The trial court denied the motion for summary judgment. The case was then tried to the court without a jury. Pursuant to findings of fact and conclusions of law made by the court judgment was entered decreeing foreclosure of the mortgage and sale of the property described therein to pay the mortgage debt. The court also found that the defendants Stasia Daly and Ed. F. Daly had failed to prove the allegations of their answer and counterclaim or damages as claimed therein.

After the parties had rested and the trial court had announced his decision from the bench, defendants' counsel stated that he would like to reopen the case. Plaintiff's counsel objected. The court announced that the case was closed and directed the plaintiff to prepare findings of fact, conclusions of law and order for judgment. The defendants moved for a new trial on the ground that the court abused his discretion in not permitting the defendants to reopen. The court entered an order denying the motion for new trial. The defendants Stasia Daly and Ed. F. Daly have appealed from the judgment and from the order denying a new trial.

We first direct our attention to the defendants' motion for summary judgment and the two grounds upon which it was based. It is argued that Chris Grenz and Rose Grenz are indispensable parties defendant and therefore the appellants were entitled to have the action dismissed. This is an action to foreclose a mortgage which neither Chris Grenz nor Rose Grenz signed upon property in which they had no interest. The fact that they signed the joint and several note which was secured by the mortgage does not make them indispensable or necessary parties to the foreclosure. 37 Am.Jur., Mortgages, Sec. 548; 59 C.J.S. Mortgages Sec. 627i; Jones on Mortgages, Eighth Edition, Sec. 1780; Wiltsie on Mortgage Foreclosure, Sec. 414. Our conclusion in this respect is strengthened by the fact that in Section 32-1907 1957 Supplement to NDRC 1943 it is provided:

'It is the intent of this section that no deficiency judgment shall be rendered upon any note, mortgage, or contract given after July 1, 1951, to secure the payment of money loaned upon real estate or to secure the...