Mader v. Plano Mfg. Co.

• Decision Date: 29 December 1903
• Citation: 97 N.W. 843,17 S.D. 553
• Parties: HENRY P. MADER et al., Plaintiff and respondent, v. PLANO MANUFACTURING COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

17 S.D. 553

97 N.W. 843

HENRY P. MADER et al., Plaintiff and respondent,

v.

PLANO MANUFACTURING COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Yankton County, SD Hon. E. G. Smith, Judge Reversed Joe Kirby Attorneys for appellant. Gamble, Tripp & Holman Attorneys for respondents. Opinion filed Dec. 29, 1903

FULLER, J.

The complaint in this action by mortgagors against the mortgagee to recover the relief, damages, and penalty provided for by section 2061 of the Revised Civil Code is as follows:

“That the defendant is, and at the times herein stated was, a corporation existing under and by virtue of the laws of the state of Illinois; that at all said times the plaintiff Henry P. Mader was and is the owner in fee of the east half of the northeast quarter of section 9, in township 94 north, of range 55 west, in this county and state; that the said Emma Mader was and now is his wife, and they are and have been at said times living upon said land as their homestead; that on the 11th day of July, 1898, for the purpose of securing the payment to the defendant of certain indebtedness evidenced by three certain promissory notes executed by the plaintiff Henry P. Mader to said defendant, plaintiffs executed to Said defendant under their hands and seals and acknowledged before an officer authorized by law to take acknowledgments a certain mortgage on said land, which said mortgage the defendant caused to be filed in the office of the register of deeds of this county on the 17th day of October, 1898, and the same was recorded in Book 81 of Mortgages, at page 6; that prior to the 12 day of July, 1901, the plaintiff, Henry P. Mader, paid in full the first two of said notes evidencing parts of said indebtedness, and on said date paid to defendant the last of said notes, being for $45, and also certain claimed livery charges and other expenses in coming to plaintiffs’ residence, by executing to defendant a note for $56.60, and securing the same on certain of his personal property by a chattel mortgage, which said defendant caused to be filed in the office of the register of deeds of this county; that on the 20th day of December, 1901, the said plaintiff Henry P. Mader paid to said defendant the said note of $56.60, of July 12, 1901, and thereupon demanded of said defendant in this county and state that it execute and deliver to him a certificate of satisfaction of said real estate mortgage, but it has neglected and refused to do so, or enter marginal satisfaction, or satisfaction of any kind; that long prior to the commencement of this action said plaintiff Henry P. Mader fully paid and satisfied said real estate mortgage.

Wherefore, plaintiffs ask judgment that said defendant be compelled to execute and deliver to plaintiffs a certificate of discharge of said mortgage, and acknowledge the same, so that it will be entitled to be admitted to record in the office of the register of deeds of this county; that they recover $25 damages and $l00 penalty prescribed by section 2061 of the Revised Civil Code of this state, and such other and further relief as would be proper in the premises, together with the costs and disbursements herein.”

The only assignments of error presented by the record relate to an order overruling a demurrer, in which the defendant’s objections to the complaint are stated thus:

“(1) That the facts stated in the complaint do not constitute a cause of action;

(2) that several causes of action have been improperly united;

(3) that there is a misjoinder of parties plaintiff;

(4) that the court has no jurisdiction of the person of this defendant or the subject matter of this action.”

The contention that the demurrer should have been sustained on the ground that Emma Mader was improperly joined with her husband as a party plaintiff has no merit, because the defendant is not prejudiced, a mortgage on the homestead is void without the signature of the wife, and a misjoinder of the plaintiffs cannot be reached in this state by a demurrer. Sections 121, 153, Rev. Code Civ. Pro.; Western Twine Co. v. Wright, 44 LRA 438 (1899); Dalrymple v. Security L. & T. Co., 83 N.W. 245.

The demurrer was properly overruled, unless one or more of the following statutory grounds are distinctly specified and appear upon the face of the pleadings:

“1. That the court has no jurisdiction of the person of the defendant, or the subject of the...