Manuel v. Turner

• Decision Date: 13 February 1908
• Citation: 93 P. 808,36 Mont. 512
• Parties: MANUEL v. TURNER et al.
• Court: Montana Supreme Court

93 P. 808

36 Mont. 512

MANUEL v. TURNER et al.

Supreme Court of Montana

February 13, 1908

Appeal from District Court, Jefferson County; Lew L. Callaway Judge.

Action by Josephine Manuel, administratrix of Moses Manuel deceased, against Dima S. A. Turner individually and as administratrix of Davis C. Turner, deceased, and others. From the decree, defendant Turner appeals. Modified and affirmed.

Galen & Mettler, for appellant.

Word & Word, for respondent.

BRANTLY C.J.

This action was brought to obtain a decree foreclosing three several mortgages upon lands situate in Jefferson county and described in the complaint, which were executed by Davis C Turner and his wife, Dima S. A. Turner, to various persons to secure the payment of as many promissory notes, each one bearing the same date as the one of the mortgages intended to secure it. At the time of his death the plaintiff's intestate was the owner of all of these notes and mortgages. The second and third of the mortgages cover the lands described in the first, as well as others, but the record is silent as to what were the several interests of these defendants in any of them. The date of the third, and the junior, mortgage, was January 21, 1903. The other two were executed some years prior to that date. The complaint contains three separate counts, each one setting forth the allegations necessary to warrant foreclosure. George M Bourquin and the T. C. Power Company were made defendants; it being alleged that they each claimed some interest in or lien upon the mortgaged property as judgment or attachment creditors or otherwise, but that their interests were subject and subsequent to the liens of plaintiff's mortgages. The prayer demands the usual decree of foreclosure as against the Turners, husband and wife, that the priority of plaintiff's mortgage liens over those of George M. Bourquin and the T. C. Power Company be fixed and established, that the property be sold to satisfy plaintiff's mortgages, and that the plaintiff have such other and further relief as to the court may seem just and equitable. The action was brought on March 6, 1906. After being served with summons, the Turners filed a general demurrer. This was on March 21st. On April 24th they entered into a stipulation with plaintiff, in which it was agreed that all the allegations of the complaint were true; that the Turners had no defense and would file no answer; that their demurrer might be overruled; that their default might be entered on or after July 11, 1906; and that at any time after that date judgment might be entered against them in accordance with the prayer of the complaint, unless the amounts due on the several promissory notes had been paid. Default was entered against them on July 13th; no payment having been made. In the meantime, on March 14th, the defendant Bourquin filed his answer, admitting the truth of the allegations of the complaint, and alleging that he was the owner of a judgment against Davis C. Turner which had been recovered on February 2, 1904, and was a lien upon the property described in the complaint. He asked that the surplus remaining after the satisfaction of plaintiff's mortgages be applied to the satisfaction of his judgment. The defendant T. C. Power Company filed its answer on April 18th. It is alleged that on October 16, 1902, it brought its action against Davis C. Turner in the district court of Lewis and Clark county; that it caused an attachment to be issued therein, directed to the sheriff of Jefferson county, and to be levied upon all the lands described in the complaint; that thereafter a judgment was given and made in said action in its favor for $103.85; and that thereafter a transcript of said judgment was filed in the office of the clerk of the district court of Jefferson county, and thus became a lien upon all of said lands from the date of the levy of the attachment paramount to plaintiff's lien under said mortgages. The prayer demanded that upon final decree its lien be adjudged paramount to that of plaintiff, and that its judgment be first paid out of the proceeds of the sale of the property.

The allegations of Bourquin's answer were not controverted by any one. To the answer of the T. C. Power Company the plaintiff filed a replication, in which, after putting in issue many of the material allegations thereof, it is alleged, "as separate defenses, cross-complaints, and counterclaims," (1) that on February 6, 1901, a judgment was duly given and made by the district court of Lewis and Clark county in favor of the Thomas Cruse Savings Bank, a corporation, against the defendant Davis C. Turner for $610.05; that thereafter a transcript of this judgment was filed and docketed in the office of the clerk of the district court of Jefferson county; that said judgment thus became a lien upon the property described in the complaint; that thereafter Moses Manuel, plaintiff's intestate, became the owner thereof by assignment; that the same came into the hands of the plaintiff as his administratrix, and that it remains wholly unpaid, and (2) that on September 22, 1902 one Arthur J. Craven brought an action in the district court of Lewis and Clark county against Davis C. Turner and Dima S. A. Turner; that he caused an attachment to issue therein, directed to the sheriff of Jefferson county, and to be levied upon the interests of said defendants in the lands described in the complaint; that thereafter such proceedings were had in the cause that on November 8, 1902, judgment was duly given and made therein in favor of said Craven and against Davis C. Turner for $302.50; that on November 10,...