Mooney v. Tyler

• Citation: 57 S.W. 1105
• Parties: MOONEY v. TYLER.
• Decision Date: 23 June 1900
• Court: Supreme Court of Arkansas

57 S.W. 1105

MOONEY v. TYLER.

Supreme Court of Arkansas.

June 23, 1900.

Appeal from Garland chancery court; Leland Leatherman, Chancellor.

Action by Mooney against Tyler for the foreclosure of a mortgage. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was brought to foreclose a mortgage for $500 on lot 6, block 1, and lot 1, block 9, in the city of Hot Springs. A note was given by appellant for $500, in which it was stipulated that, if default was made in payment of interest or insurance upon the property, the principal and interest should at once become due and payable. Appellant defaulted in the payment of the insurance in $8.40 for 1895, and $8.40 for 1896, whereupon appellee brought this suit to foreclose. Appellant answered that the debt was not due, and that lot 1, block 9, was inadvertently or fraudulently incorporated in the deed of trust. After all the proof was in, and the case was ready for trial, appellant offered to file an amendment setting up in defense usury in the debt. This was disallowed by the court, to which appellant excepted. The cause was tried, decree for appellee, and appellant excepted and brought the case here.

Vaughan & Rutherford, for appellant. Morris M. Cohn, for appellee.

HUGHES, J. (after stating the facts).

We find no reversible error in the decree of the court. The debt became due and payable upon default in payment of the insurance. There was evidence tending to show that lot 1, block 9, was not incorporated in the deed of trust by mistake or fraud. At least, it is not clear that the chancellor was not right as to this. Unless the findings of the chancellor were against the clear preponderance of the evidence, we should not reverse. Gaty v. Holcomb, 44 Ark. 216.

There was no issue as to usury in the case. Under the circumstances of this case, it seems to us that it was within the sound judicial discretion of the chancellor to permit or refuse to permit the amendment setting up usury, at the time it was offered, as it, if admitted, would probably have caused delay in the trial of the cause. There does not appear to be an abuse of judicial discretion in this, and we do not feel warranted in interfering with the chancellor's discretion in the matter. Thompson v. McHenry, 18 Ark. 537; Mandel v. Peet, 18 Ark. 236; Ford v. Ward, 26 Ark. 360; Clayton v. State, 24 Ark. 16; Mohr v. Sherman, 25 Ark. 7; Campbell v. Garven, 5 Ark. 485. Decree affirmed.

BUNN, C. J., and BATTLE, J., not...