Markle v. Reed

• Decision Date: 05 October 1935
• Docket Number: 31896.
• Citation: 49 P.2d 240,142 Kan. 402
• Parties: MARKLE v. REED et al.
• Court: Kansas Supreme Court

49 P.2d 240

142 Kan. 402

MARKLE v. REED et al.

No. 31896.

Supreme Court of Kansas

October 5, 1935

Syllabus by the Court.

In mortgagee's assignee's action on note and to foreclose mortgage wherein mortgagors pleaded payment to mortgagee as assignee's agent, trial court's finding upon conflicting evidence that mortgagee was not assignee's agent would not be disturbed.

In an action involving the issue of agency to receive payment upon a note and mortgage, the evidence was conflicting. Held, the finding of the trial court is controlling.

Appeal from District Court, Neosho County; J. T. Cooper, Judge.

Action by Bruce Hedrick Markle, administrator with will annexed, and another against Clara Reed and others. From an adverse judgment, defendants appeal.

James A. Allen, B. M. Dunham, and L. H. Cable, all of Chanute, for appellants.

John J Jones, of Chanute, for appellees.

HARVEY Justice.

This is an action on a promissory note and to foreclose a real estate mortgage given to secure it. It was brought by the assignee of the mortgage; the assignment having been duly recorded. Defendants pleaded payment to the mortgagee, who they alleged was agent of the assignee for the purpose of receiving payment. The defenses were put in issue by a verified reply. Full payment of principal and interest was shown to have been made to the original mortgagee. The real controverted issue was that of agency. The court found "the issues herein and each of them, in favor of plaintiff and against the defendants," and rendered judgment accordingly. Defendants have appealed.

We are handicapped in considering any alleged errors occurring during the trial by reason of the fact that a motion for a new trial was not filed within the three days required by statute. R. S. 60--3003. The court's decision was rendered July 24, 1933, and the motion for a new trial was not filed until July 29. We are further handicapped by the fact that appellants have assigned no error of law to be reviewed by this court. At most we have before us the sole question of whether the judgment itself should stand. In this case that naturally depends upon the evidence respecting the issue of agency. On that point there is a controversy in the evidence. On behalf of plaintiff there was positive testimony that no such agency had been established or existed. On behalf of defendants, facts, circumstances, and a course of dealing were shown which would have...