Ross v. Barker
| Decision Date | 06 April 1899 |
| Citation | 78 N.W. 730,58 Neb. 402 |
| Parties | ROSS ET AL. v. BARKER ET AL. |
| Court | Nebraska Supreme Court |
1. The request for a separate statement of conclusions of fact and of law in the trial of a cause to a court without a jury, to render a compliance therewith compulsory, must be made not later than at the final submission of the cause.
2. If notes, accompanied by real-estate mortgages by which the payments of the notes are secured, are pledged as collateral security for the payment of a debt, and the mortgages are foreclosed by the pledgee, in actions to which the pledgor is not made a party, and the pledgee at the foreclosure sales purchases the properties, if it appear that such action was with the intent to acquire complete titles thereto the pledgor may affirm the sales, and demand credit on the principal debt for the amounts bid, less costs and expenses of the foreclosures, and if the said sums, in the aggregate, exceed the debt, may recover the excess.
Error to district court, Douglas county; Ferguson, Judge.
Action by Reuben W. Ross and others, executors of William Ross, against George E. Barker and others. Judgment for defendants, and plaintiffs bring error. Affirmed.William D. Beckett and Edward H. Moeran, for plaintiffs in error.
E. J. Cornish, for defendants in error.
It appears herein that on or about the 25th of May, 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 sale 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 title 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 the 2d day of January, 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, 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 ...
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