Peterson v. Wolff
| Decision Date | 04 June 1938 |
| Docket Number | 6527 |
| Citation | 280 N.W. 187,68 N.D. 354 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Dunn County; Harvey J. Miller, Judge.
Suit to foreclose a chattel mortgage by Maurice Peterson against Otto Wolff. Judgment for plaintiff, and defendant appeals.
Remanded.
Syllabus by the Court.
1. In a case tried to the court without a jury, where the statement of the case and specifications of error are sufficient to justify a trial de novo on appeal to the Supreme Court, it is unnecessary to move for a new trial in the court below in order to secure a review of the sufficiency of the evidence.
2. Foreclosure of a chattel mortgage by action must be commenced within a reasonable time after the mortgagee takes possession of the property under the terms of the mortgage. A mortgagee who delays foreclosure an unreasonable time after taking possession, and in the meantime treats such property as his own, converts the property.
3. Proof of demand and refusal is merely evidence of conversion and if conversion has actually taken place, it may be otherwise shown.
4. Conversion by a person holding a chattel mortgage of a substantial part of the mortgaged property extinguishes the lien upon the property converted.
5. Where a mortgagor sets up as a defense to an action to foreclose a chattel mortgage that all of the mortgaged property has been converted by the mortgagee, and it appears from evidence introduced at the trial that part of the mortgaged property was destroyed without the fault of either party, part of it is unaccounted for, and a substantial part has been converted by the mortgagee, the mortgagee is entitled to a judgment for the amount of the debt, and a decree for foreclosure on the property unaccounted for.
G R. Brainard (C. H. Starke, on oral argument), for appellant.
It is a general rule that the neglect, inattention, mistake or incompetence of an attorney is attributable to the client, unless caused by the opposite party. 34 C.J. 465, 466; Kennedy v. Torodor (Minn.) 276 N.W. 650; Bancroft, Code Pl. 32; Bliss, Code Pl. 3d ed., § 161; Donovan v. McDevitt, 92 P. 49; Smith v. Chin Chew, 254 P. 599; Sugarman v. Morse Bros. Mach. Co. 255 P. 1010.
It is a general rule, applicable in motions for new trials and to vacate judgments alike, that any doubt should be resolved in favor of the new trial, or in favor of the opening. Bank v. Brandon, 19 N.D. 489, 126 N.W. 102; Grady v. Bonahoo, 108 Cal. 211, 41 P. 41; Hedrick v. Stockholders' Credit Corp. 64 N.D. 101, 250 N.W. 539.
Failure to comply with the statutes in this respect renders the foreclosure a nullity, and the exercise of dominion over the property inconsistent with the rights of the estate of the mortgagor amounts to a conversion. Hedrick v. Stockholders' Credit Corp. 64 N.D. 101, 250 N.W. 539.
When the record is in a vague, indefinite and unsatisfactory condition a new trial will be ordered in the district court. Drivdahl v. International Harvester Co. 43 N.D. 284, 174 N.W. 817; Williams County State Bank v. Gallagher, 35 N.D. 24, 159 N.W. 80.
Where the title to the mortgaged property remains in the mortgagor until divested by means of a foreclosure proceeding, after default by the mortgagor, the mortgagee's right to use the chattels mortgaged is, in the absence of special agreement, merely such as is incident to the foreclosure proceeding. Hawkins v. Hubbard, 2 S.D. 631, 51 N.W. 774; Landis v. Knight, 23 N.D. 450, 137 N.W. 477; Williams County State Bank v. Gallagher, 35 N.D. 24, 159 N.W. 80; Drivdahl v. International Harvester Co. 43 N.D. 284, 174 N.W. 817; Sutherland v. Noggle, 35 N.D. 538, 170 N.W. 1000; George W. Van Dusen & Co. v. Arnold, 5 S.D. 588, 59 N.W. 961.
A conversion of the mortgaged property to his own use by the holder of the mortgage satisfies the mortgage debt to the extent of the value of the property. 11 C.J. 686; Marseilles Mfg. Co. v. Perry, 87 N.W. 544.
The right of recoupment given by statute is an action of grace to the mortgagee. Harder v. Hospital, 69 Wis. 288, 34 N.W. 145; Steidel v. Aitken, 30 N.D. 281, 152 N.W. 276, L.R.A.1915E, 192; First Nat. Bank v. Jackson, 140 Okla. 282, 283 P. 242, 68 A.L.R. 900; Hill v. First Nat. Bank, 79 Fla. 391, 84 So. 190, 20 A.L.R. 270; Heaton v. Hoerr, 66 N.D. 430, 266 N.W. 261.
Where no valid lien for any amount exists at the time of the commencement of the proceeding to foreclose, the court cannot entertain the proceeding for the purpose of granting a personal judgment. Jones, Liens, 3d ed. § 1614; Lehman v. Coutler, 40 N.D. 177, 168 N.W. 724; Northwestern Nat. Bank v. Howlett, 63 N.D. 163, 248 N.W. 57.
Floyd B. Sperry, for respondent.
Temporary use of property by the mortgagee with the assent of the mortgagor does not extinguish the mortgage lien. 11 C.J. 687; George W. Van Dusen & Co. v. Arnold, 5 S.D. 588, 59 N.W. 961.
An authorized or lawful use of another's property, or a mere use by a person in rightful possession, is not a conversion. 65 C.J. 37; Security State Bank v. Krach, 36 N.D. 115, 161 N.W. 568.
The body of the petition may be considered in connection with the prayer for the purpose of determining the relief sought. 49 C.J. 175; Johnston Farm. Inv. Co. v. Huff, 52 N.D. 589, 204 N.W. 333.
Moreover, if we turn to § 5630, Rev. Codes (§ 7229, Rev. Codes 1905), it becomes transparently clear that upon the ground of errors in law -- i.e., rulings, etc., occurring at the trial -- a motion for a new trial will not lie in the district court. For such errors a trial anew could be had in this court, under the section above quoted, and which must govern this case. State v. Templeton, 21 N.D. 470, 130 N.W. 1009; McKenzie v. Bismarck Water Co. 6 N.D. 361, 71 N.W. 608; National Union F. Ins. Co. v. Martin, 41 N.D. 393, 170 N.W. 880.
Where it appears that upon the uncontroverted facts the plaintiff cannot recover in the action, a verdict and judgment for defendants will not be disturbed by this court even when the record shows errors in procedure. Such errors are without prejudice. Prairie School Twp. v. Haseleu, 3 N.D. 328, 55 N.W. 938.
In order to have the evidence reviewed in jury trials a motion must be made for a new trial in the district court. Heald v. Strong, 24 N.D. 120, 138 N.W. 114.
An appeal from the judgment is ineffectual to bring up for review orders made subsequent to such judgment. This court has expressly settled this question in this state. Hedderich v. Hedderich, 18 N.D. 488, 123 N.W. 276; Paulson v. Modern Woodmen, 21 N.D. 235, 130 N.W. 231; Lile v. Barns (S.D.) 139 N.W. 338; Blackstead v. Kent, 63 N.D. 246, 247 N.W. 607.
Where there is no demand embodied in the statement of the case, either for a retrial in this court of the entire case or of any specified fact therein, this court is wholly without power to retry any issue of fact in the case. State v. McGruder, 9 N.D. 566, 84 N.W. 363; Bank v. Davis, 8 N.D. 83, 76 N.W. 998; Hayes v. Taylor, 9 N.D. 92, 81 N.W. 49; Nichols Shepard Co. v. Stangler, 7 N.D. 102, 72 N.W. 1089; Security Improv. Co. v. Cass County, 9 N.D. 553, 84 N.W. 477.
Where, as in the case at bar, a trial de novo is asked under the provisions of § 7846, Compiled Laws of 1913, and the record is in such a condition that an intelligent disposition in the Supreme Court is impossible on account of the vague, indefinite, and uncertain state of the testimony, a new trial will be ordered in the district court. Williams County State Bank v. Gallagher, 35 N.D. 124, 159 N.W. 80; Drivdahl v. International Harvester Co. 43 N.D. 284, 174 N.W. 817; Landis v. Knight, 23 N.D. 450, 137 N.W. 477.
Every presumption favors propriety and regularity of trial proceedings, and party asserting error has burden of proving it. Arnold v. Minneapolis, St. P. & S.S.M.R. Co. 59 N.D. 59, 228 N.W. 456; Enderlin v. Pontiac Twp. 62 N.D. 105, 242 N.W. 117; Thede v. Rusch, 65 N.D. 34, 256 N.W. 409; 4 C.J. 731; Hawkins v. Hubbard, 51 N.W. 774; G.W. Van Dusen & Co. v. Arnold, 5 S.D. 588, 59 N.W. 961.
When a party appeals for a new trial of a case in the appellate tribunal, the whole case is open to investigation, and not merely that portion of the judgment which is adverse to the appellant. Patterson Land Co. v. Lynn, 44 N.D. 251, 175 N.W. 211; Tyler v. Shea, 4 N.D. 377, 61 N.W. 468; Wetmore v. Wooster, 212 Iowa 1365, 237 N.W. 430.
This case comes to us for a trial de novo upon an appeal by the defendant from a judgment for the foreclosure of a chattel mortgage. The court entered judgment for the amount found due on the note secured by the mortgage and adjudged that the plaintiff be entitled to the possession of all of the property described in the chattel mortgage, and that the same be sold by the sheriff pursuant to law, and the proceeds applied upon the debt and that in event there be a deficiency that the plaintiff have judgment against the defendant therefor.
The appellant made a motion for a new trial in the court below in which he challenged the sufficiency of the evidence. The trial court denied the motion and in its memorandum opinion reviewed the evidence and held it to be sufficient to sustain the judgment. The appellant sought to appeal from both the judgment and from the order denying his motion for a new trial. The notice of appeal was not filed within sixty days from the entry of the order as required by §§ 7820 and 7821, N.D. Comp. Laws 1913. The respondent challenges the validity of the appeal from the order and moves for its dismissal on the ground that the notice of appeal was filed too late. The respondent's position upon this point is well taken and the appeal from the order is...
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