Metropolitan Life Ins. Co. of City of New York v. Reimer

• Citation: 263 N.W. 826,220 Iowa 1162
• Decision Date: 17 December 1935
• Docket Number: 43085.
• Parties: METROPOLITAN LIFE INS. CO. OF CITY OF NEW YORK, v. REIMER et al.
• Court: United States State Supreme Court of Iowa

263 N.W. 826

220 Iowa 1162

METROPOLITAN LIFE INS. CO. OF CITY OF NEW YORK, v. REIMER et al.

No. 43085.

Supreme Court of Iowa.

December 17, 1935

Appeal from District Court, Pottawattamie County; John P. Tinley Judge.

Marx E Reimer and Meta Reimer, who were defendants in a foreclosure suit brought by the Metropolitan Life Insurance Company filed an application for an extension of the redemption period, on October 19, 1934, and also on November 5, 1934 under chapter 179 (House File 350), Acts of the 45th General Assembly. A hearing was held upon these applications, and the lower court refused to grant the extension of the period of redemption. On February 28, 1935, Marx E. Reimer filed an application for extension of the redemption period, under House File 84 (chapter 110), Acts of the 46th General Assembly. Upon a hearing this application was likewise denied. From these two orders, denying extension of the redemption period, this appeal was perfected by Marx E. Reimer and Meta Reimer. Opinion states the facts.

Affirmed.

Kimball, Peterson, Smith & Peterson, of Council Bluffs, and G. C. Wyland, of Avoca, for appellants.

Tinley, Mitchell, Ross & Everest, of Council Bluffs, for appellee.

MITCHELL, Justice.

On the 25th day of May, 1933, the Metropolitan Life Insurance Company of the city of New York, a corporation, filed its petition in Pottawattamie county, Iowa, against Marx E. Reimer and Meta Reimer, in which it alleged that the defendants had made, executed, and delivered to Annis & Rohling their certain promissory note in the sum of $40,000, due June 1, 1938; that said note provided for the payment of interest at the rate of 5 per cent., payable annually on the 1st day of June in each year; that, collaterally with the execution of the note and as a part of the same transaction and to secure the payment of the same, Marx E. Reimer and his wife, Meta Reimer, made, executed, and delivered for a valuable consideration, to Annis & Rohling Company, their certain real estate mortgage covering the property described in the petition; that under date of May 28, 1928, the said Annis & Rohling Company for valuable consideration sold, assigned, and transferred the note and mortgage to the plaintiff; that there was default in the payment of interest and taxes; and that, because of failure to pay the interest and taxes as they became due, according to the provisions of the note and mortgage, the entire note and mortgage became in default. They prayed for judgment in the full amount and for foreclosure of the mortgage, and that special execution issue for the sale of the said described property. Notice was given as by law provided, and on the 27th day of September, 1933, a decree of foreclosure was entered. It recited that the Metropolitan Life Insurance Company appeared by its attorneys, Tinley, Mitchell, Ross & Everest, and the defendants Marx E. Reimer and Meta Reimer appeared by their attorney, George Wyland, and that the defendants consented to entry of the decree in the form in which it was entered. No answer was filed by the defendants. On the 7th day of October, 1933, special execution duly issued out of the office of the clerk of the said court, directed to the sheriff of Pottawattamie county, and, pursuant to said special execution, sale of the premises was had on November 8, 1933, at 10:30 o'clock a. m., and the premises struck off to the Metropolitan Life Insurance Company for the sum of $41,302.93, leaving a deficiency judgment in an amount of approximately $4,000. Said execution was on November 8, 1933, returned by the sheriff of Pottawattamie county, Iowa, marked, " Satisfied in part." On January 30, 1934, there was an order entered by the district court, appointing W. E. Oxley as receiver of the said premises, directing that Marx E. Reimer and Meta Reimer should have the first opportunity to lease the land. There appeared to be no objection made to the appointment of the receiver by the defendants. On October 19, 1934, there was an application filed by Marx E. Reimer and Meta Reimer, in which they set out that they are the owners of the said land described in the foreclosure petition; that foreclosure decree had been entered and sheriff's deed would issue on or about November 8, 1934, unless the time for them to redeem was extended. They asked that the period of redemption be extended as provided by law. To this application there was filed a resistance by the Metropolitan Life Insurance Company. On November 5, 1934, Marx E. Reimer filed an application for extension of the redemption period, in which he said that he was the owner of the said premises, and that application was made under the provisions of chapter 179 of the laws of the 45th General Assembly of the state of Iowa, known as House File 350. He asked for an extension of the redemption period until March 1, 1935, stating that he was entitled to the possession of said premises. There appears to be no difference between the application of November 5th and the application of October 19th, except that the application of November 5th is filed by Marx E. Reimer alone and it is a little more explicit than the one of October 19th. Both of these applications were set down for hearing, and on January 14, 1935, after a hearing before the court, both sides being duly represented by counsel, the lower court overruled the application for the extension of the redemption period and directed the sheriff of Pottawattamie county, upon the presentation of the sheriff's certificate, to issue sheriff's deed to the holder and owner of said certificate. On February 28, 1935, Marx E. Reimer filed an application for extension of the redemption period. This time the application recited that it was filed under House File No. 84 (chapter 110) of the Acts of the 46th General Assembly of the state of Iowa. To this application a resistance was filed by the Metropolitan Life Insurance Company. On the 10th day of April, 1935, after a hearing, both parties being represented by counsel, the lower court entered an order, overruling and denying the application for extension of the redemption period.

From the ruling and judgment of the lower court, refusing to grant the extension as prayed for in all three applications, Marx E. Reimer and Meta Reimer have appealed to this court.

We find that we have two propositions that confront us in this case. The first one is whether or not these parties were entitled to an extension of the period of redemption under chapter 179 of the Acts of the 45th General Assembly; the second, whether or not they were entitled to an extension of the period of redemption under House File No. 84, Acts of the 46th General Assembly.

The first two applications for extension of the redemption period involved the construction of chapter 179 of the Acts of the 45th General Assembly. Why there were two filed does not definitely appear in the record. The second application is set out a little more in...