Portland Cattle Loan Co. v. Gemmell

• Decision Date: 24 December 1925
• Citation: 41 Idaho 756,242 P. 798
• Parties: PORTLAND CATTLE LOAN COMPANY, a Corporation, Plaintiff and Respondent, v. DAVID GEMMELL and AGNES GEMMELL, E. CURTIS WARREN, and NATIONAL BANK OF IDAHO, a Corporation, Defendants and Respondents. FEDERAL RESERVE BANK OF SAN FRANCISCO, a Corporation, FIRST NATIONAL BANK OF WALLACE, a Corporation, and NATIONAL COPPER BANK, a Corporation, Plaintiffs in Intervention, and Appellants, v. DAVID GEMMELL, AGNES GEMMELL, NATIONAL BANK OF IDAHO, a Corporation, and PORTLAND CATTLE LOAN COMPANY, a Corporation, Defendants in Intervention and Respondents
• Court: Idaho Supreme Court

242 P. 798

41 Idaho 756

PORTLAND CATTLE LOAN COMPANY, a Corporation, Plaintiff and Respondent, v. DAVID GEMMELL and AGNES GEMMELL, E. CURTIS WARREN, and NATIONAL BANK OF IDAHO, a Corporation, Defendants and Respondents.

FEDERAL RESERVE BANK OF SAN FRANCISCO, a Corporation, FIRST NATIONAL BANK OF WALLACE, a Corporation, and NATIONAL COPPER BANK, a Corporation, Plaintiffs in Intervention, and Appellants, v. DAVID GEMMELL, AGNES GEMMELL, NATIONAL BANK OF IDAHO, a Corporation, and PORTLAND CATTLE LOAN COMPANY, a Corporation, Defendants in Intervention and Respondents

Supreme Court of Idaho

December 24, 1925

PLEADING - COMPLAINT AND CROSS-COMPLAINT - ALLEGATIONS-INTERVENTION-ISSUE-PROCESS - PERSONAL SERVICE OUTSIDE STATE-DEFAULT-PROOF-PLEDGES-ENFORCEMENT - PROMISSORY NOTE-AMOUNT OF INDEBTEDNESS - PRESUMPTION-EVIDENCE-IMPEACHMENT - WITNESSES - CROSS-EXAMINATION - DISCRETION OF TRIAL COURT-STATUTE-APPEAL AND ERROR-REVIEW-FINDINGS-IMMATERIAL ISSUES.

1. Allegations of a complaint and cross-complaint alleging a certain, specific agreement and state of facts, not answered by an intervenor, are sufficiently put in issue as to such intervenor where the complaint in intervention alleges a certain, specific agreement and state of facts wholly inconsistent with and contrary to the allegations of the complaint and cross-complaint, and answers to the complaint in intervention specifically deny the allegations thereof.

2. Personal service outside the state, when ordered, is in lieu of publication, and a default based upon such service does not admit the material allegations of a complaint, and the court must require proof to be made of the demand mentioned in the complaint.

3. Possession of a promissory note, and its production in evidence, with proof of its execution and delivery as collateral security, establish prima facie a prior indebtedness presumed to be at least equal to the face of the note.

4. While possession of a note is prima facie evidence of ownership, this amounts only to a presumption which may be overcome by the facts, and a finding to the contrary supported by substantial evidence, will not be disturbed.

5. While impeachment evidence, consisting of statements of a witness made at another time or place, is not substantive proof of the truth of the facts so stated, it may have the effect of rendering nugatory the affirmative evidence given of a different state of facts.

6. Cross-examination of a party to an action is largely in the discretion of the trial court, and refusal of a court to permit one party to an action to examine a party called as a witness by another party for cross-examination under the statute (C. S., sec. 8035), is not an abuse of discretion when full opportunity existed for the party complaining to himself call such party for examination under the statute.

7. A judgment based upon sufficient findings as to material issues, supported by sufficient evidence, will not be reversed because other findings upon immaterial issues are not supported by the evidence.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to foreclose a mortgage on real property. Judgment for plaintiff and cross-complainant National Bank of Idaho, from which plaintiffs in intervention appeal. Affirmed.

Judgment affirmed. Costs to respondents.

S. T Lowe, for Appellants.

The trial court has the same discretion to limit an examination under C. S., sec. 8035, as it has of cross-examination generally, and should exercise this discretion to the end that the purpose of the law be not abused. (Darry v. Cox, 28 Idaho 519, 155 P. 660; Boeck v. Boeck, 29 Idaho 639, 161 P. 576.)

The best evidence of the contents of a written instrument consists in the actual production of the instrument itself; secondary evidence of its contents cannot be admitted until the nonproduction of the original has been satisfactorily accounted for. (10 R. C. L., sec. 55, p. 903.)

"The possession of a negotiable instrument indorsed in blank is sufficient prima facie evidence of ownership." (Bank of California v. J. L. Mott Iron Works, 113 Cal. 409, 45 P. 674; Gumaer v. Sowers, 31 Colo. 164, 71 P. 1103; State Savings Assn. of St. Louis, Mo., v. Barber, 35 Kan. 488, 11 P. 330; O'Keefe v. First Nat. Bank, 49 Kan. 347, 33 Am. St. 370, 30 P. 473; Price v. Winnebago Nat. Bank, 14 Okla. 268, 79 P. 105.)

"On a claim for unliquidated damages it is error for the court on default to enter judgment for damages without requiring the plaintiff to prove the amount of damages he has sustained." (Welsh v. Bigger, 24 Idaho 169, 133 P. 381; Park v. Wardner, 2 Idaho 263, 285, 13 P. 172; Idaho Placer Min. Co. v. Green, 14 Idaho 284, 94 P. 161.)

Budge & Merrill, Jones, Pomeroy & Jones and D. W. Standrod, for Respondents.

When the allegations of the complaint are not denied either by the defendants or by an intervenor who injects himself into a cause, and no evidence is received in support thereof, it is not error for the trial court to make finding responsive to the undenied allegations of the complaint. (Brown v. Macey, 13 Idaho 451, 90 P. 339; Edmundson v. Taylor, 17 Idaho 618, 106 P. 991; Fouch v. Bates, 18 Idaho 374, 110 P. 265; Woronicki v. Pairskiego, 74 Conn. 224, 50. A. 562; Fernendez v. Watt, 26 Cal.App. 86, 146 P. 47.)

A cause will not be reversed by an appellate court merely because the trial court admitted immaterial evidence. (Tuttle v. Welty, 46 Colo. 25, 102 P. 1069; In re McVay's Estate, 14 Idaho 56, 93 P. 28; People v. Durrant, 116 Cal. 179, 48 P. 75; Garr v. Cranney, 25 Utah 193, 70 P. 853.)

TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur. Budge, J., took no part in the decision.

OPINION

TAYLOR, J.

The respondent Portland Cattle Loan Company, hereinafter referred to as plaintiff, brought this action against David Gemmell, Agnes Gemmell, his wife, and E. Curtis Warren, hereinafter referred to as defendants, and the National Bank of Idaho, a defendant, hereinafter referred to as cross-complainant, to enforce foreclosure of a real estate mortgage. The appellants Federal Reserve Bank of San Francisco, First National Bank of Wallace, and National Copper Bank, intervened, and will be hereinafter referred to as intervenors or appellants. The plaintiff, cross-complainant and intervenors all sought foreclosure of the same real estate mortgage, but upon different allegations of their individual rights and of the agreement for the giving of the mortgage, and as to how it was to be, and was, carried out. The intervention was permitted on a motion and order reciting that the intervenors "have an interest in the subject matter of the action adverse to the plaintiff and defendants."

Plaintiff's complaint alleges the mortgage to have been given on June 9, 1920, by defendants Gemmell to Warren as trustee, to secure four certain promissory notes in the sum of $ 25,000 each, under an agreement that two of the notes were to be given to plaintiff as collateral security for a prior existing indebtedness, and advancements recited, now due and owing, one to be given to assignors of the cross-complainant and the fourth to Webb & Company; that the three notes were delivered, but that the fourth was never delivered to Webb & Company, and remains in the hands of Warren undelivered; that defendant Warren has refused and neglected to foreclose the mortgage, though past due, and without right claims some interest in the so-called Webb & Company note as security for alleged indebtedness of Gemmell to the First National Bank of Burley, but that said note was never delivered to such bank; and that Warren had no right to assign or deliver it to the bank or to anyone other than Webb & Company, who had refused to accept it.

The cross-complainant answered the complaint, admitting most of its material allegations, but denying that any sum was due or owing to the plaintiff, and by cross-complaint setting out practically the same general, material allegations as in plaintiff's complaint, its ownership and possession of one of the $ 25,000 notes, and its nonpayment, with sufficient allegations for foreclosure of the mortgage. No error is assigned for insufficiency of the evidence of cross-complainant, except such as goes also to plaintiff's case.

The intervenors did not answer the complaint or cross-complaint but by their complaint alleged different facts as to the agreement for, and execution and delivery of, the notes and mortgage. They alleged that Gemmell and wife were indebted to the First National Bank of Burley in the approximate sum of $ 19,250, and in large sums of money to certain other creditors in amounts unknown to intervenors; that, in order to secure said creditors and the First National Bank of Burley, they agreed with the bank to execute the four promissory notes in the sum of $ 25,000 each, payable to Warren, to be secured by a mortgage, and that as soon as the notes and mortgage were made, Warren would assign, transfer and deliver one of them to the bank as collateral security for the indebtedness due from Gemmell and wife to the bank or its assigns; that, pursuant to this agreement, Gemmell and wife made, executed and delivered to Warren their four certain promissory notes in the sum of $ 25,000 each and mortgage, for the benefit of the owners and holders of said notes; that, on June 19, 1920, for the purpose of carrying out the terms of this agreement, and in pursuance thereof, Warren did indorse, transfer and deliver to the bank one of said notes, secured by said mortgage, setting out a copy of the note; that, on June 19, 1920, Warren made, executed and delivered to the bank an assignment of said mortgage; that the bank accepted the note and assignment of mortgage...