Sherman v. Wichner
| Decision Date | 24 May 1915 |
| Docket Number | 3720. |
| Citation | 152 N.W. 700,35 S.D. 436 |
| Parties | SHERMAN v. WICHNER et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Tripp County; William Williamson, Judge.
Action by Henry G. Sherman against Emil H. Wichner and others to foreclose a mortgage. From a judgment for plaintiff defendant Mart Coffman appeals. Affirmed.
N. D Burch and E. O. Patterson, both of Dallas, for appellant.
W. J Hooper, of Gregory, for respondent.
Action in circuit court, Tripp county, to foreclose a mortgage on certain real property known as the Sherman Hotel, in the town of Colome. The complaint contained the usual and sufficient allegations of the execution and delivery of the mortgage, and default in its conditions prior to the commencement of the action; also that the mortgaged premises were rented to tenants at a rental of $75 per month, and- "that the value of the said mortgaged premises is probably insufficient to pay the amount of the mortgage indebtedness, besides accrued taxes and necessary insurance, besides costs of the action."
The complaint contains the further allegation:
"That justice and equity require that a receiver be appointed to take possession of said mortgaged property and collect all rents and profits arising therefrom during the pendency of this action"
-and prays a further order that:
The rents and profits "may be applied to the payment of any deficiency which may exist in the mortgage indebtedness after paying the principal, interest, costs, attorney's fee, taxes, and indebtedness."
Plaintiff verified the allegations of the complaint as "true of his own knowledge." The verified complaint was presented to the trial court, and, without notice to defendants, the court forthwith made an order reciting:
"This court being satisfied that justice and equity require the appointment of a receiver to collect the rents and profits during the pendency of this action."
-and appointing A. B. Hancock as receiver with authority to take possession of the mortgaged premises, to collect the rents and profits during the pendency of this action, and out of the rents and profits to pay the taxes, insurance on the premises, all as covenanted in the mortgage, and to retain the balance from such rents until the further order of the court. It was further ordered that the receiver execute a bond in the sum of $2,000, and take the oath required by law, and that upon his qualification the defendants, and all persons claiming under them, refrain from interfering with the receiver of his possession of the premises, and further directing the tenants to pay to the receiver rents accruing under the lease. This order was made on July 31, 1914, filed and entered August 6, 1914, served on appellant August 12, 1914, and on the last-named date the receiver took possession of the property. Defendant excepted to the order appointing the receiver, and alleges error therein for the reasons: First, that the complaint fails to state facts sufficient to entitle the plaintiff to the appointment of a receiver; second, that the court did not require plaintiff to give a bond before issuing the order, etc.; third, that the order was made ex parte, without notice. Respondent amended the statement of facts in appellant's brief by showing that on August 25, 1914, appellant served notice of a motion, returnable August 31st, to vacate the order appointing a receiver, for the reasons that: (1) Said order is contrary to law, and the court was without jurisdiction to make the same; (2) because the order was made before the commencement of the action, and therefore void; (3) because the order was on an ex parte application without proof, and no bond was given; (4) that the complaint fails to state facts entitling plaintiff to the appointment of a receiver; (5) because defendants are entitled to possession of the property under section 2054 of the Civil Code, and the defendants cannot be legally dispossessed by a receiver; (6) because the property is no probably insufficient to pay the amount of the mortgage, but is ample security therefor, as shown by affidavits annexed and served, "numbered from 1 to 27," and that the order covers personal property upon which plaintiff has no lien, and it is impossible to determine what part of the rent is paid for the building, and what part for the personal property. This motion came on for hearing August 31st, and thereafter the court entered another order reciting that the court had considered the affidavits attached to and served with the motion, and also affidavits offered in rebutal, and that, being fully advised, the court finds from such affidavits:
This order was dated and entered October 12, 1914, and at the time the motion was considered and decided appellant had answered the complaint in the action, in which answer defendant, among other things admitted default in the conditions of the mortgage. It is alleged, and not denied, that plaintiff executed and filed a bond in compliance with the order of October 12th, and that...
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