Ross v. Barker
| Decision Date | 06 April 1899 |
| Docket Number | 8843 |
| Citation | 78 N.W. 730,58 Neb. 402 |
| Parties | REUBEN W. ROSS ET AL. v. GEORGE E. BARKER ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before FERGUSON, J. Affirmed.
AFFIRMED.
William D. Beckett and Edward H. Moeran, for plaintiffs in error:
The district court erred in holding that when a note and mortgage are assigned as collateral security, and upon default the assignee or pledgee forecloses without making his principal debtor a party and bids in the property in his own name, it may be considered by the debtor as an absolute purchase, and he is entitled to have the amount of the bid credited upon his indebtedness. (Colebrooke, Collateral Securities 330; First Nat. Bank of Jeffersonville, Ind., v. Ohio Falls Car & Locomotive Works, 20 F. 65; Hoyt v Martense, 16 N.Y. 231; Dalton v. Smith, 86 N.Y 177; In re Gilbert, 104 N.Y. 200; Bloomer v Sturges, 58 N.Y. 170.)
The court erred in refusing to state separately its conclusions of fact and its conclusions of law. (Wiley v. Shars, 21 Neb. 715; Sprick v. Washington County, 3 Neb. 255; Lowrie v. France, 7 Neb. 191; Howard v. Lamaster, 13 Neb. 221; Haller v. Blaco, 14 Neb. 196; Foster v. Devinney, 28 Neb. 416; Ross v. Miner, 31 N.W. 185 [Mich.]; Thompson v. Russell, 32 P. 56 [Okla.]; Nephi Irrigation Co. v. Jenkins, 31 P. 986 [Utah]; Braden v. Lemmon, 26 N.E. 476 [Ind.]; Farrar v. Lyon, 19 Mo. 122; Piercifield v. Snyder, 14 Mo. 583.)
E. J. Cornish, contra.
References as to collateral security and mortgage foreclosure: Haas v. Bank of Commerce, 41 Neb. 754; Easton v. German-American Bank, 24 F. 523; Wright v. Ross, 36 Cal. 414; Newport & Cincinnati Bridge Co. v. Douglas, 12 Bush [Ky.] 573; Bryan v. Baldwin, 52 N.Y. 233; Stokes v. Frazier, 72 Ill. 428; Hyams v. Bamberger, 36 P. 202 [Utah]; Dimock v. United States Nat. Bank, 25 A. [N. J.] 926; Chouteau v. Allen, 70 Mo. 290; Maryland Fire Ins. Co. v. Dalrymple, 25 Md. 242; Lucketts v. Townsend, 49 Am. Dec. [Tex.] 737; Marye v. Strouse, 5 F. 483; Taussig v. Hart, 58 N.Y. 425; Bank of the Old Dominion v. Dubuque & P. R. Co., 8 Ia. 277; Fletcher v. Dickinson, 7 Allen [Mass.] 23; Stearns v. Marsh, 4 Den. [N. Y.] 227; Strong v. National Mechanics Banking Ass'n, 45 N.Y. 718.
References as to requests for separate findings: Miller v. Lively, 27 N.E. 437 [Ind.]; Hartlep v. Cole, 120 Ind. 247; Levi v. Daniels, 22 O. St. 38; Blish v. McCormick, 49 P. 529 [Utah]; Murphy v. Snyder, 8 P. 2 [Cal.]; Haller v. Blaco, 14 Neb. 196; Doane v. Smith, 51 Neb. 280; Town v. Missouri P. R. Co., 50 Neb. 768; Missouri P. R. Co. v. Vandeventer, 26 Neb. 223; Oxford Township v. Columbia, 38 O. St. 94; Heintz v. Cooper, 47 P. 360 [Cal.]; Weaver v. Apple, 46 N.E. 642 [Ind.]; Leach v. Church, 10 O. St. 149; Cottrell v. Nixon, 109 Ind. 378; Missouri, K. & T. R. Co. v. Wallis, 38 S.W. 357; Brock v. Louisville & N. R. Co., 21 So. Rep. [Ala.] 994.
It appears herein that on or about May 25, 1887, George E. Barker, Frank B. Johnson, and Robert Garlichs borrowed from Reuben Ross, a resident of New York state, the sum of $ 100,000, and to evidence the indebtedness created by the transaction executed and delivered to him their promissory note. As security for the payment of the amount of the loan certain promissory notes and the real estate mortgages, by which their payments were secured, were transferred by the parties borrowers to the loaner and payee of the principal note. There were about 300 of the notes which were indorsed and delivered as collateral securities, and the amount of them, in the aggregate, was something more than $ 100,000. The mortgages were duly assigned. Subsequent to the completion of the transaction of loan Reuben Ross died, and the further matters of business relative to the affair were under the management and direction of the executors of his estate. After the loan was effected the interests of Robert Garlichs and Frank B. Johnson in the collateral securities were by assignment passed to the National Bank of Commerce. There had been foreclosures of many of the mortgages, and at the sales of the mortgaged premises Reuben Ross, or the executors, had become the purchasers. They had also compromised with some of the debtors of the collateral securities, by acceptance of renewals in some instances and by reception of conveyances of titles of the mortgaged properties in others. The executors sought in this action to recover an amount of the original loan indebtedness, which they asserted was due and unpaid. The defendants pleaded that more than sufficient to pay the entire principal debt and interest had been realized from payments, foreclosures, etc., of the collateral securities. The National Bank of Commerce intervened in the action and set forth its claimed rights, as assignee of the interests of certain of the parties to the loan, in the collateral securities. In the reply of the plaintiffs there were statements relative to the foreclosures of the mortgages and the purchases at the sales of the mortgaged premises, or rather that they were "bid in" and the titles taken in the name of Reuben Ross during his life, and in the names of his executors thereafter, and the offer was made to convey all said titles to the principal defendants in this suit. Issues were joined, and a trial thereof had to the court without a jury. This was during the 24th, 25th, and 26th days of September, 1895, and the cause was then, so far as we can gather from the record, submitted.
On January 2, 1896, there was filed a decree, of which the following is the opening statement: "This cause heretofore coming on to be heard in its regular order upon the petition of the plaintiff, the answer of the defendant George E. Barker, the reply of the plaintiffs to the answer of George E. Barker, the petition of intervention of the National Bank of Commerce, the answer of said plaintiffs to said petition of intervention of the National Bank of Commerce, the reply of the National Bank of Commerce to said answer, and the evidence and argument of counsel, and a jury being waived in open court by all the parties hereto, was submitted to the court, on consideration whereof, and the court being duly advised in the premises, on this 2d day of January, 1896, finds." This entry discloses that the submission of the cause had been at a time prior to the decision. On the same day, January 2, 1896, there was filed for plaintiffs a request that the court state in writing and separately its conclusions of facts and law. This request was refused. There was a judgment for defendants, and the plaintiffs have removed the cause to this court.
It is argued that the trial court erred in its refusal of the request for separate statements of its conclusions of facts and of law, and in this connection we are referred to section 297 of the Code of Civil Procedure as providing for such a request, and it is urged that if it is made, there must be a compliance with it, and its refusal may furnish a reason for a reversal of the judgment, if adverse to the party who preferred the request. Section 297 of the Code of Civil Procedure is as follows: "Upon the trial of questions of fact by the court it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law." It has been decided by this court that it is error to refuse to make and state separate conclusions and findings of law and fact if requested. (Wiley v. Shars, 21 Neb. 712, 33 N.W. 418.) But it is advanced for defendants in error that the request must be seasonably made, and if not so, may be refused, and that the request in this case was too late to force recognition. It has been said by this court that the request must be before judgment (Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N.W. 935), and we are satisfied that it is proper, in order that the trial judge may examine and consider the questions of fact and of law and formulate and prepare the requisite statements, that the request should be made at the time of the trial, and not later than at the final submission of the cause for decision, or at a later time, to be fixed by the court. The judge should not be called upon, as in this case, at the same time of the rendition of his decree to then particularize in regard to every conclusion of fact and also of law. He undoubtedly might and may do so. We think it discretionary with him, if the request is made later than at the time we have indicated, whether he will comply with it or not, but it seems only right and compatible with true rules of procedure that if the judge must comply with such a request, the same be made at such a time as will enable him to comply with it conveniently, and with due consideration and preparation of his statements. It is stated in Elliott, Appellate Procedure, section 729: ...
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