Peterson v. Johnson
| Decision Date | 16 January 1934 |
| Docket Number | 1830 |
| Citation | 28 P.2d 487,46 Wyo. 473 |
| Parties | PETERSON v. JOHNSON, ET AL |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Lincoln County; JOHN R. ARNOLD Judge.
Action by Charles H. Peterson against Charles A. Johnson and another. From an adverse judgment, defendants appeal.
Affirmed.
The cause was submitted for the appellants upon the brief of J A. Christmas, of Kemmerer, Wyoming.
The court erred in granting the temporary injunction and in denying defendant's motion to vacate the injunction, and to dismiss plaintiff's petition. The various alleged causes of action set out in the petition are not consistent one with the other. Anderson v. Englehart, 108 P 779. The court erred in issuing the injunction without sustaining affidavits. Plaintiff sought to restrain an act already done, the sale having taken place some ten (10) days before suit was filed. 41 C. J. 1934; Dickinson v. Hayes, 26 Minn. 100; 1 N.W. 834; Youngberg v. Town of Wewoka, 225 P. 695; Teter v. Board, 204 P. 129; Parish v. School Dist. 171 P. 461; Drummond v. City, 206 P. 200. The judgment is contrary to law, in that plaintiff's petition does not state facts sufficient to constitute a cause of action or to support a judgment for plaintiff. The petition is insufficient because of a misjoinder of inconsistent causes of action. The findings, judgment and decision are not sustained by the evidence. The note and mortgage were given for a valuable consideration; no fraud entered into the transaction; the statute of limitations did not apply, and the alleged payment of $ 1000.00 was not made. The plaintiff's action, if any, was one at law for damages and not a suit in equity.
For the respondent, there was a brief by George H. Crosby of Evanston, and Kent M. Crosby of Kemmerer, and oral argument by Mr. George H. Crosby.
The issuance of the injunction was in accordance with Section 89-3502 R. S. 1931. The petition was properly verified. Section 89-1048 R. S. 1931. The rule as to granting preliminary injunctions is set forth in 32 C. J. 351. As to a prima facie case, see "Words and Phrases" Volume 3 (Second Series) at page 1174. The sheriff promised to postpone the sale under the provisions of Section 71-119 R. S. 1931; 41 C. J. 966. Equity will vacate a sale made under a power on proof of fraud, concealment or deceit. 41 C. J. 1025, or where the mortgage was without consideration. 19 R. C. L. 617; 41 C. J. 933; 14 R. C. L. 313. There was no abuse of judicial discretion in allowing the injunction. There was no improper joinder of causes of action. Citizens Bank v. Closson, 29 Ohio St. 81. By demurring to the evidence of the opposite party, one waives his own evidence. 38 Cyc. 1542. The delay in applying for an injunction is fully explained. The case here hinges upon the credibility of the witnesses. 23 C. J. 53. The interest rate on the note was unlawful. Sec. 3359 C. S. 1910; 27 R. C. L. 232. A judgment rendered on conflicting evidence will not be disturbed on appeal. Palmer v. Wineberger, 98 N.E. 1030;
J. A. Christmas in Reply.
The suggestion of usury was an afterthought and it was not pleaded or proved. The court was in error on deciding the issue on that point. Section 38-105 R. S. 1931. No usury was established. 39 Cyc. 1043, 1045. The theory upon which the case was tried must be adhered to on appeal. Jones v. Kepford, 17 Wyo. 468; Williams v. McWhorter, 30 Wyo. 229.
Charles H. Peterson, as plaintiff, brought this action against Charles A. Johnson and W. G. McIlvain on March 17, 1931. He alleged in all of his causes of action that on April 10, 1910, he and his wife executed a promissory note to defendant Charles A. Johnson, for $ 1200.00, due in one year, drawing ten per cent interest per annum, until due, and drawing interest at one and one-half per cent per month after it was due, the note being secured by a mortgage, containing the ordinary power of sale on 160 acres of land in what is now Lincoln County, Wyoming. It appears that defendant McIlvain was the sheriff of Lincoln County, and that, commencing on January 22, 1931, notice of foreclosure under the power of sale of the aforesaid mortgage was given, in which the amount due on January 22nd, 1931, was given as the sum of $ 1892.10 and $ 150 attorneys' fee, the sale to take place on March 7, 1931. In the first cause of action it was further alleged that the sheriff promised to postpone the sale following an unforeseen accident which disabled plaintiff's attorney to do anything in the case, but that the promise was not kept. Inasmuch as there is no evidence in the record as to these allegations, we shall make no further reference to it. In the second cause of action plaintiff further pleaded that the amount of $ 1892.10, stated in the notice of foreclosure, was greatly excessive; that there was actually due only the sum of $ 155.40 and an attorney's fee, which plaintiff offered to pay; that no credit had been given for the sum of $ 1000 which was paid by plaintiff on the note. In the third and fourth causes of action the plaintiff alleges that the note was given for a one half interest of defendant in a mercantile store, but that the store was insolvent, which defendant Johnson, but not the plaintiff, knew at the time, and that the note was without consideration, and was obtained under duress. In the fifth cause of action the plaintiff pleaded among other things that the note was barred by limitations; these allegations, too, were ignored by the court, so that we need not give them any consideration herein. Plaintiff accordingly prayed that the sale of the premises be declared void; that it be set aside and held for naught, that the sheriff be enjoined and restrained from proceeding further with the issue of a certificate of sale or deed; that a preliminary injunction be issued and on the trial be made permanent, and for such other relief as to the court might appear to be equitable. A preliminary injunction was issued as prayed. The defendant Johnson filed an answer, admitting the execution of the note and mortgage in question, and the foreclosure of the mortgage, and denied all the other allegations of plaintiff; he further pleaded the execution of the note and mortgage; that it was unpaid, except certain items endorsed thereon; that the mortgage was foreclosed on March 7, 1931, ten days previous to the commencement of this action, and that the defendant Johnson became the purchaser of the premises, bidding the amount claimed to be due and the costs of the proceeding, and that a certificate of sale was issued, subject to the right of redemption of the plaintiff within six months. The case herein was tried to the court, without a jury. The court found that there was due to defendant Johnson on the note the sum of $ 229.10, plus the sum of $ 150 for attorneys' fees; judgment was given for that amount against the plaintiff; the preliminary injunction theretofore issued was made permanent, and the premises in question were ordered to be sold to satisfy the sum so found to be due.
1. We must first of all consider the assignment of error that the judgment is not sustained by sufficient evidence. In that connection counsel for the defendant say that the preponderance of the evidence is in favor of the defendant. But that is not the criterion. We have held that the criterion is as to whether or not there is substantial evidence to support the finding of the court. Farmers' State Bank v. Trust Company, 39 Wyo. 46, 270 P. 163; Gray v. Elliott, 36 Wyo. 361, 255 P. 593, 53 A. L. R. 554. The evidence in the case shows that the note in question was given for the defendant's interest in a mercantile store. That store had, prior to 1905, been conducted by the plaintiff Peterson and one Parsons. Parsons sold out, as to whom and when is in question. Plaintiff claimed that he sold out to him some time prior to 1905, and that the defendant Johnson bought a half interest from him, Peterson, about 1905, paying him therefor the sum of $ 250. This evidence was introduced for the purpose of showing duress and want of consideration in connection with the note in suit. The defendant Johnson testified that he bought a half interest in the store from Parsons, for the sum of $ 600, and introduced a check in evidence. This check placed the defendant in an unfortunate position. It purports to be dated June 19, 1905, given to Parsons and Peterson for the sum of $ 600. It was written in an indelible pencil, and indicates that it was originally given in 1903 instead of 1905. There is furthermore written in ink the words "Half interest in store." These facts warranted the court, we think, in finding, as it undoubtedly did, that changes were deliberately made in the check, and thereupon, doubtless disregarded all testimony given by the defendant, and applied the rule, recognized by this court, of falsus in uno, falsus in omnibus. Rue v. Merrill, 42 Wyo. 511, 527, 297 P. 379. And he doubtless also rejected the testimony of his relatives. The defendant claimed that the following payments had been made on the note, and no others:
Oct. 18, 1911--Interest to date
$ 190.75
Oct. 18, 1911--On note
356.92
April 1, 1912--Paid
15.73
July 15, 1913--Jensen order
61.00
Oct. 7, 1912--Check
100.00
Dec. 13, 1913--Five cows Heber Jensen
105.00
Dec. 13, 1913--Heber Jensen
10.50
April 27, 1915--Check
50.00
April 13, 1918--Check
60.00
Jan. 30, 1921--Cattle
100.00
July 8, 1925--Check
25.00
Sept. 3, 1925--Check
25.00
The plaintiff, in his testimony, denied not only as counsel for defendant claim, that he paid the last two items, but he also twice testified that he had no recollection whatever of paying the first two items, thus...
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