Schuber v. McDuffee
| Decision Date | 30 October 1917 |
| Docket Number | 7068. |
| Parties | SCHUBER et al. v. McDUFFEE et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 8, 1918.
Syllabus by the Court.
Where judgment is rendered on the pleadings, a motion for new trial is neither essential nor proper, and error assigned upon the overruling thereof presents nothing for review in the Supreme Court.
Where motion to strike and demurrer were sustained to an answer and defendants obtained leave to and thereafter filed an amended answer, repleading the matter eliminated the error if any, in the order sustaining the motion, and demurrer was waived.
A motion for judgment on the pleadings is in the nature of a demurrer, and has the effect of testing the sufficiency of the pleadings and presenting to the court as a question of law whether the facts alleged constitute a defense to the plaintiff's cause of action.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Motion for Judgment on Pleading.]
Although the answer of defendants contained a general denial, this was qualified by other allegations therein contained which admitted all the essential facts necessary to authorize a judgment in plaintiff's favor, and it was not error to sustain a motion for judgment on the pleadings.
Where a bank made a loan to its officers in violation of section 270, Rev. Laws 1910, the loan was not void as between the bank and the debtor, who cannot defeat a recovery by the bank upon that ground.
One who purchases property subject to a mortgage thereon, and expressly assumes the payment of the mortgage indebtedness cannot deny the existence of such indebtedness or the amount thereof, neither can he question the consideration therefor.
Error from District Court, Alfalfa County; James W. Steen, Judge.
Action by G. J. McDuffee against D. S. Schuber, Reinhard Meier, and others. Judgment for plaintiff, and defendants Schuber and Meier bring error. On the death of plaintiff, judgment and proceedings in error revived in name of H. P. McDuffee, administrator. Affirmed.
See, also, 158 P. 895.
J. P. Evans, of Byron, for plaintiffs in error.
Titus & Talbot, of Cherokee, for defendants in error.
This action was commenced in the district court of Alfalfa county by G. J. McDuffee against J. L. Blanchard, Nellie F. Blanchard, D. S. Schuber, and Reinhard Meier to recover upon certain promissory notes executed by J. L. and Nellie F. Blanchard to Byron State Bank, and foreclosing a certain real estate mortgage given to secure same, which notes and mortgage were duly assigned to M. A. Blanchard, and by him assigned to G. J. McDuffee prior to the filing of this suit. Defendants J. L. and Nellie F. Blanchard answered, admitting the execution and delivery of said notes and mortgage, and admitted the balance due thereon and prayed a foreclosure of said mortgage be had, and any deficiency after a sale of the property be made off defendants Schuber and Meier. Defendants Schuber and Meier answered by way of general denial, and alleged that defendant J. L. Blanchard induced them to purchase said property by fraudulently misrepresenting its value; that the mortgage sued upon was not assigned for value; that plaintiff did not purchase same for value or in due course; that the deed in which it was recited that the said defendant assumed the payment of said mortgage was not executed on the date alleged, but was, in fact, executed and delivered on a later date; and that at the time J. L. and Nellie Blanchard procured the loan represented by said notes and mortgage they were officers and stockholders of said bank, and by reason thereof said loan was prohibited by law and the notes and mortgage were void. Plaintiff filed motion to strike certain portions of this answer and demurred thereto. The motion and demurrer were by the court sustained, whereupon defendants asked and were granted time to file amended answer, and thereafter, on August 10th, amended answer was filed, which, in substance, alleged the same matters set out in the original answer. Motion to strike portions of the amended answer and demurrer thereto were filed, and by agreement of parties the ruling of the court upon the motion and demurrer to the original answer was set aside and said motion and demurrer considered as filed to the amended answer, and upon consideration were by the court sustained. The ruling on the motion to strike eliminated from the answer of defendants a portion of the allegations of fraud alleged to have been made by J. L. Blanchard to induce said defendants to purchase said property, also the allegations that the notes and mortgage had not been assigned by the payee to M. A. Blanchard or by M. A. Blanchard to plaintiff for value, or that plaintiff was the holder for value, and also that portion alleging that the notes and mortgage were void because executed in violation of the banking laws of the state. On the 21st of August, 1914, motion for judgment on pleadings was sustained, and judgment rendered for plaintiff for the amount claimed and decreeing the foreclosure of said mortgage, from which judgment defendants Schuber and Meier prosecute this appeal.
The judgment appealed from was rendered on the pleadings, and a motion for new trial was neither essential nor proper, and an assignment of error predicated thereon presents nothing for review. Dunn v. Claunch, 15 Okl. 27, 78 P. 388.
When defendants asked leave to file amended answer after motion and demurrer thereto were sustained, and in pursuance of the leave granted filed an amended answer, the error, if any, in the action of the court in sustaining the motion and demurrer to the original answer was waived. Wallace v. Blasingame, 155 P. 1143; Guess v. Reed, 152 P. 399; Campbell v. Thornburgh, 154 P. 574.
The judgment being rendered upon the motion therefor, the motion for judgment was in the nature of a demurrer, and had the effect of testing the sufficiency of the pleadings and presenting to the court as a question of law whether the facts alleged constituted a defense to the plaintiff's action. Peck v. First Nat. Bank, 150 P. 1039.
If the amended answer set up any defense to plaintiff's action, or alleged any issuable fact which defendants were entitled to have determined at the trial, the judgment of the court cannot be upheld. On the contrary, if there was no fact in issue and no defense stated to the plaintiff's petition, the ruling of the court was correct and the judgment should be affirmed. In support of the judgment, defendants in error contend that the answer admitted every essential fact necessary to establish plaintiff's cause of action, and therefore there was nothing which plaintiff was required to prove.
The cause of action as stated was one for judgment upon certain promissory notes and for foreclosure of a mortgage given to secure the payment of same. The notes and mortgage were executed by J. L. and Nellie Blanchard, and the property described therein had been conveyed by warranty deed to defendants, who assumed the payment of said indebtedness, as appears by a recital in the deed of conveyance. Although the answer of defendants contained a general denial, this was qualified by other allegations therein contained, which had the effect of admitting the execution and delivery of the notes and mortgage sued upon and of the deed, which contained a recital that the indebtedness secured by said mortgage was assumed by said defendants. Pugh v. Stigler, 21 Okl. 854, 97 P. 566; Adkins v. Arnold, 32 Okl. 167, 121 P. 186; Long v. Shepard, 35 Okl. 489, 130 P. 131; De Groat v. Focht, 37 Okl. 267, 131 P. 172; Acton v. Culbertson, 38 Okl. 280, 132 P. 812; Chambers v. Kirk, 41 Okl. 696, 139 P. 986.
It was alleged, in substance, that said defendants deny that on the 7th day of April, 1913, the said J. L. and Nellie Blanchard executed and delivered to said defendants their warranty deed conveying said premises, but that in truth and in fact said deed was made, executed, and delivered on the 27th day of June, 1913. This allegation constituted a negative pregnant which admitted the execution and delivery of the deed in question, but denied that it was executed on the 7th day of April, 1913. Spencer v. Turney & Co., 5 Okl. 683, 49 P. 1012; Barnum v. Kennedy, 21 Kan....
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