Newton v. McGee

Decision Date11 March 1913
Citation140 N.W. 252,31 S.D. 216
PartiesNEWTON v. McGEE.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Hand County; John F. Hughes, Judge.

Action by Mrs. C. L. Newton against J. A. McGee, with counterclaim by defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

J. H Cole, of Miller, for appellant.

M. C Cunningham, of Highmore, for respondent.

GATES J.

This action was brought by plaintiff, presumably under the provisions of section 675, C. C. P., to determine the adverse claims of defendant to certain real estate in Hand county. The complaint alleges that plaintiff is the owner and holder of a mortgage lien (describing it) upon the property, and that defendant wrongfully claims an estate and interest in said real estate adverse to the plaintiff, and prays that her claim to the premises be established against any claim of the defendant therein, and that the defendant be forever barred against having or claiming any right or title to the premises adverse to the plaintiff, and that he release to the plaintiff all claim to said premises, and for such other relief as may be equitable.

The summons and complaint were personally served upon defendant April 5, 1910, outside of this state. Before answering defendant made a special appearance and moved to quash the summons and the service thereof, upon the grounds that the action was not brought in conformity with the provisions of chapter 81 of the Laws of 1905; that the service of summons outside of the state, without an order for the publication thereof, was defective; and that the summons was insufficient, because it gave plaintiff's initials instead of her full name. The motion was overruled, and properly so. Chapter 194 of the Laws of 1903, as amended by chapter 81, Laws of 1905, did not repeal section 675, C. C. P. The new remedy was merely cumulative. Buckham v. Hoover, 18 S.D. 429, 101 N.W. 28. Chapter 127 of the Laws of 1907 expressly did away with the necessity of an order for the publication of summons in this case. If defendant desired to avail himself of the technical objection as to the initials, he should have made a showing as to the true name of the plaintiff. Hoyt v. Williams, 1 Dak. 505 (Dist. Court); Bliss, Code Pl. § 146a.

Subsequently defendant filed another motion to dismiss the summons and complaint upon the first two grounds above mentioned, and because the complaint did not state a cause of action. This motion was properly denied. Subsequently defendant demurred to the complaint upon the grounds of said motion, and because there was a defect of parties defendant, in that all the necessary parties required under chapter 81, Laws of 1905, were not made defendants. Plaintiff, as mortgagee, had the right to maintain the action. Battelle v. Wolven, 19 S.D. 87, 102 N.W. 297; Rhomberg v. Bender, 28 S.D. 609, 134 N.W. 805. It was not necessary that all parties claiming an interest be joined as defendants. Ward v. Brown, 28 S.D. 375, 133 N.W. 699.

Defendant then answered, setting up a general denial, and, by way of counterclaim, that he was the owner of a tax deed on the premises, dated and recorded April 6, 1900; that he had ever since been in possession; that he had paid the taxes under the tax sale certificate and deed from 1894 to 1909, inclusive, and had, while in possession, made valuable, permanent improvements in digging and removing stone and in breaking the land, and setting forth the value of such improvements. Plaintiff replied to the counterclaim.

At the trial, which was had on January 24, 1911, plaintiff showed title in the mortgagor, then introduced in evidence the mortgage and the record thereof, which mortgage was given to the Northwestern Mortgage Trust Company, dated October 30, 1889, and due December 1, 1894, to which defendant objected, for the reason that the alleged mortgage showed, on its face, that the same was more than six years past due, and the presumption was that the same had been paid, and the same was surplusage as to one of said offers. This objection was insufficient, and was properly overruled.

Plaintiff then offered in evidence the purported note, secured by said mortgage, which appears to conform to the description thereof in the mortgage, and which purported to be indorsed by the said Mortgage Trust Company to the plaintiff. To this offer defendant objected, "for the reason that the same is incompetent, immaterial, and irrelevant, and has not been properly identified, and that the same shows, on its face, that it is more than six years past due, and therefore barred under the statutes of limitations." The last ground of objection was properly overruled, even had the action been one upon a promissory note alone. Respondent, after offering the note in evidence, was entitled to further opportunity to rebut the apparent bar. This question cannot properly be raised by an objection to the introduction of the note in evidence. Dielmann v. Citizens' N. B., 8 S. D. 263, 66 N.W. 311.

The other objections did not go to the extent of challenging the execution of the note, and were insufficient. Caledonia G. M. Co. v. Noonan, 3 Dak. 189, 14 N.W. 426; Park v. Robinson, 15 S.D. 551, 91 N.W. 344; Landis Mch. Co. v. Konantz Saddlery Co., 17 N.D. 310, 116 N.W. 333. Plaintiff then offered in evidence the record of the assignment of the mortgage from the mortgagee to the plaintiff, to which defendant objected as incompetent, irrelevant, and immaterial, which objection was properly overruled.

Defendant then offered in evidence his tax deed and the certificate upon which the same was based. The tax deed among others contained the following recitals: "Whereas J. A. McGee did, on the 6th day of April, 1900, produce to the...

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