Ruble v. Nyseth

Decision Date31 December 1931
Docket NumberNo. 5990.,5990.
Citation61 N.D. 623,239 N.W. 625
PartiesRUBLE v. NYSETH (KNUDSON, Garnishee, and OLSON, Intervener).
CourtNorth Dakota Supreme Court


Syllabus by the Court.

The evidence is examined, and it is held, that the mortgage claimed by the intervener is a valid and subsisting mortgage, that the funds in the hands of the garnishee are the proceeds of the sale of the mortgaged property, and that under the facts in this case the intervener has a lien thereon, because of his mortgage, and this lien is superior to the lien of garnishment obtained by the plaintiff; as the plaintiff in this garnishment action cannot recover against the garnishee unless the defendant could recover against him in an action in his own name and the defendant herein is precluded from asserting any claim to the property as against the intervener.

Appeal from District Court, Burleigh County; R. G. McFarland, Judge.

Action by E. C. Ruble against O. M. Nyseth wherein H. A. Knudson was served with a writ of garnishment and wherein Willie Olson intervened. From the judgment rendered, the plaintiff appeals.


Hyland & Foster, of Bismarck, for appellant.

William Langer, of Bismarck, for intervener.


The plaintiff brought action against the defendant to recover on certain promissory notes, and garnished money in the hands of one H. A. Knudson. It is undisputed this money is part of the proceeds of an auction sale of defendant's property. The intervener claims he had a mortgage upon the property sold, which claim is resisted by the plaintiff. The controversy in this appeal is between the plaintiff and intervener over this money in the hands of the garnishee.

The case was tried to the court without a jury, and the only questions involved in the lawsuit are two questions of fact.

[1] The first question deals with the validity of the mortgage. The record shows a mortgage on file given by the defendant to the intervener. The intervener claims the defendant owed him a sum of money far in excess of the amount secured by the mortgage; that a settlement was made wherein the amount stated in the mortgage was accepted as the amount due; that a note for this amount and mortgage securing it was given; and that the same remains unpaid.

The plaintiff has no direct evidence to dispute the statements of the intervener, and relies almost exclusively upon the unreasonableness of his story. The intervener testified to a series of transactions extending over a great number of years. His story shows carelessness and laxity in business transactions, and plaintiff and one of his witnesses testify that at one time when the intervener was in plaintiff's office he stated the defendant did not owe him anything; that this was at a time when he owed an account sought to be collected by the witness; that this witness asked why he had loaned $1,000 to the defendant when he could not pay his own bills; and that the intervener said the defendant did not owe him anything. This statement is contradicted by the defendant. Other than this contradictory statement, the fact that the transactions related covered a number of years with no book or other written evidence is all there is to attack the validity of the mortgage.

While ordinarily it is not usual to loan large amounts of money without taking notes or other evidence of debt, or without making some entries in books of account, yet there is no inherent improbability in the story of the intervener. The defendant testified that he borrowed these sums of money and owed the intervener over $1,000. In this he is corroborated by his wife. The intervenertestifies to the same state of facts. As the trial court said: “There isn't very much to the case as to this note and mortgage. The only thing is the statement claimed to have been made down in Mr. Ruble's office by Mr. Olson. Of course, that statement, Mr. Olson flatly denies was made. In these matters of contradiction it is very easy for either one or both parties not to have obtained a verbatim, accurate...

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