Louisville Banking Co. v. Blake

• Decision Date: 02 December 1897
• Citation: 70 Minn. 252,73 N.W. 155
• Parties: LOUISVILLE BANKING CO. v BLAKE ET AL.
• Court: Minnesota Supreme Court

70 Minn. 252

73 N.W. 155

LOUISVILLE BANKING CO.vBLAKE ET AL.

Supreme Court of Minnesota.

Dec. 2, 1897.

(Syllabus by the Court.)

1. The payee and mortgagee of a promissory note and collateral real-estate mortgage brought an action against the maker and mortgagor, alleging the execution of the note and mortgage, and their nonpayment, and demanding judgment against the maker and mortgagor for the amount due, and for a decree of foreclosure. On default of the defendant to appear or answer, the court found, among other things, the execution of the note and mortgage, their nonpayment, and the amount due thereon, and ordered judgment in favor of the plaintiff and against the defendant for that amount, and for a decree of foreclosure. Subsequently, but before a judgment had been entered, the plaintiff, upon a showing that the lien of his mortgage had in the meantime been extinguished by the foreclosure of a prior mortgage to a third party, obtained from the court (but without notice to the defendant) an order modifying its order for judgment so as to merely direct personal judgment against the defendant for the amount found due him, and judgment was entered accordingly. Held, that the personal judgment was within both the allegations of the complaint and the prayer for relief, and that no notice to the defendant of the application for a modification of the order for judgment was necessary.

2. Also, that the plaintiff was not concluded by obtaining the original order for judgment from applying for its modification so as to allow him to take merely a personal judgment.

Appeal from district court, Hennepin county; David F. Simpson, Judge.

Action by the Louisville Banking Company against John D. Blake and others to set aside a judgment. From an order sustaining a demurrer, plaintiff appeals. Affirmed.

Van Fossen & Frost, for appellant.

F. B. Hart, for respondents.

MITCHELL, J.

The defendant J. D. Blake executed to Wilcox his note, and, as security for its payment, a mortgage on real estate which was subject to a prior mortgage to a third party. Blake having defaulted in the conditions of the note and mortgage, Wilcox brought an action to foreclose, in the usual form; alleging in his complaint the execution of the note and mortgage, the amount due thereon, its nonpayment, and asking for judgment against Blake for the amount due, and for a decree of foreclosure. It is conceded that the summons was duly served on Blake, but he never appeared in the action. Upon the hearing the court found, among other things, the execution of the note and mortgage, and the amount due thereon from Blake to Wilcox, as alleged in the complaint, and, as conclusions of law, found that the latter was entitled to judgment against the former for that amount, and for a decree of foreclosure,...