Snyder v. Pike

• Decision Date: 20 December 1905
• Docket Number: 1604
• Citation: 30 Utah 102,83 P. 692
• Court: Utah Supreme Court
• Parties: SNYDER v. PIKE

83 P. 692

30 Utah 102

SNYDER v. PIKE

No. 1604

Supreme Court of Utah

December 20, 1905

APPEAL from District Court, Emery County; Jacob Johnson, Judge.

Action by C. Beldin Snyder against W. R. Pike. From a judgment for plaintiff, defendant appeals.

REVERSED.

Powers and Marioneaux and Edward Pike for appellant.

APPELLANT'S POINTS.

Where there is an assignment of the mortgage it will not pass or transfer the debt or note which the mortgage secured without also assigning the debt or note; for the indebtedness is not considered as passing by a mere transfer and assignment of the mortgage. (20 Am. and Eng. Ency. of Law (2 Ed.), 1028 1030, 1033; 1 Wiltsie, Mortgage Foreclosure, p. 923.)

A foreclosure suit is not strictly speaking an action in rem. It is partly an action in rem for the seizure and sale of the property, and partly an action in personam for the ascertainment of the debt of the mortgage debtor and obtaining a personal judgment against him. (8 Am. & Eng. Enc of Law (1 Ed.), p. 204; 2 Jones on Mort. (5 Ed.), p. 365 sec. 1444.)

"All civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken in such cases, as provided by law." Under the construction given the above constitutional provision, in the following cases, by this Court, the above quoted statute (R. S., 2928) is unquestionably in conflict with the constitution and Pike properly brought his action of foreclosure in Utah county, the place where his right and cause of action arose. (Konold v. Railroad, 16 Utah 151; Irrigation Co. v. McIntyre, 16 Utah 398; Moseby v. Gibson, 17 Utah 257; Brown v. Bache, 17 Utah 435; Condon v. Leipsiger, 17 Utah 498; Mining Co. v. McMaster, 19 Utah 177; Woodward v. Edmund, 20 Utah 118.)

"There was here jurisdiction of the subject-matter, that is, of the general class of cases to which the particular case belongs, and where such jurisdiction exists specific objection to the jurisdiction must be opportunely made and duly brought into the record. (McCoy v. Abel, 131 Ind. 419, 130 Ind. 405, 97 Mo. 424, 90 Mo. 365; Jackson v. Smith, 120 Ind. 520.)

Jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action." (Hunt v. Hunt, 72 N.Y. 217; St. Louis, etc., Rd. v. Lowder, 60 Am. St. 565.)

A court of general jurisdiction having equity powers and the right to foreclose mortgages generally has jurisdiction of the subject-matter and where the defendant fails to make his demand to have the case transferred to the proper county, as by statute provided, waives all right to object to the jurisdiction of the court. (Trapier v. Waldo, 16 S.C. 276; See also 38 N.W. 439; 14 How. Prac. 54; Chouteau v. Allen, 70 Mo. 290; Brown v. Burris, 6 Conn. 198, 40 Hun 532; Dotie v. Deposit, etc., Association, 43 L.R.A. 553.)

"Statutes usually provide specifically where all actions belonging to certain designated classes shall be brought. At common law, the venue must be laid in the proper county in local actions, or the court is without jurisdiction. But this rule has been materially modified in many if not most of the States, by statutory provisions to the effect that, where the action is brought in the wrong county, the defendant must, within the designated time, demand that the same be transferred to the proper county, or the court in which it is brought shall have jurisdiction." (Woodward v. Hanchett, 52 Wis. 482, 49 N.W. 468; Fletcher v. Stowell, 28 P. 326; Houch v. Lasher, 17 How. Pr. 520; West v. Walker, 77 Wis. 557, 46 N.W. 819; Blackford v. Lehigh R. Co., 53 N.J.L. 56, 20 A. 735; Walker v. Stroud, (Tex.), 6 S.W. 202; De La Vaga v. Teague, 64 Tex. 214; Watts v. White, 13 Cal. 321.)

M. M. Warner and D. D. Houtz for respondent.

RESPONDENT'S POINTS.

"If the action be commenced in a county other than that in which the real estate is situated, the court is without jurisdiction." "Or that where such action is commenced in the proper county, the place of trial will not be changed upon the ground that the defendant resides in another county, as may be done in personal actions." (Duffy v. Duffy, 38 P. 443; Warner v. Warner, 100 Cal. 11; Hancock v. Burton, 61 Cal. 70; Fritz v. Camp, 94 Cal. 393; Miller v. Hall (Howard), N.Y. Prac. 325; Gould v. Bennett, 59 N.Y. 124. N.Y. Code of Civil Prac., sec. 987, is the same as sec. 2928, Revised Statutes of Utah.)

It is the universal practice, that upon an appeal, if the reviewing court, upon consideration of the whole case, is of the opinion that the Judgment of the lower court is correct, even though the lower court arrived at such judgment upon an erroneous line of reasoning, the reviewing court will affirm the judgment and assign the proper reason therefor, and will ignore the reasons assigned by the lower court. (2 Spelling on New Trial, sec. 693; Belger v. Sanchez, 137 Cal. 614, and many other California cases; Forester v. Copper Mining Co., 23 Mont. 122, and other Montana cases; Water Co. v. Osborne, 25 Nev. 53; Lockhart v. Wills, 9 N. Mex. 344; Lockhart v. Johnson, 181 U.S. 516; Tribune Co. v. Barnes, 7 N. Dak. 591; Birmingham v. Cheetham, 19 Wash. 657.)

"If the amount necessary to redeem from a sheriff's sale is paid to the proper officer, in a bank draft, which is accepted by the officer but not actually collected until after the expiration of the time for redemption, the redemption is nevertheless complete. It is not essential that the payment be made in money, unless so required by the officer." (Buford v. Henzier, 8 Biss. 177, F. Cas. No. 2114; Webb v. Watson, 18 Iowa 537; Carter v. Lewis, 27 Mich. 241; Sanderson v. Menage [Minn.], 43 N.W. 66; Jersup v. Carey, 61 Ind. 584; Society v. Burnett, 106 Cal. 514; Comptoir D'Escompte de Paris v. Dresbach, 78 Cal. 15.)

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., concurs in the result. MORSE, District Judge, concurs.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

The record in this case presents substantially the following facts: The Copper Globe Mining Company, a corporation was, in 1899, the owner of certain mining claims situate in Emery county. On September 29, 1899, it gave to W. R. Pike a mortgage upon said claims to secure a debt of $ 2,000 evidenced by a promissory note of even date, due and payable to Pike six months thereafter at the First National Bank of Provo, Utah in United States gold coin, with interest at the rate of one per cent, per month both before and after judgment. The mortgage was duly recorded May 31, 1900. The Copper Globe Mining Company had its principal office and did its business at Provo, where its officers resided, and where all the business in connection with the note and mortgage was had and transacted. On October 15, 1900 Phillips and Childs obtained a judgment against the Copper Globe Mining Company in the district court of Emery county for the sum of $ 200, interest and costs. An execution was issued on the judgment in December, 1900, and the said mining claims of the Copper Globe Mining Company were levied upon and sold by the sheriff of Emery county on February 4, 1901, at which execution sale Phillips and Childs became the purchasers for $ 261, and a certificate of sale of the mining claims mentioned was issued to them by the sheriff on the last-mentioned date. On April 18, 1901, Pike brought an action in the Fourth judicial district court of Utah county on his said note, and for foreclosure of his mortgage against the Copper Globe Mining Company. Phillips, Childs, and J. R. Wren & Co., a corporation, which was also a judgment creditor of the said mining company, were made defendants. Summons was personally served upon each of the defendants. J. R. Wren & Co. filed a general demurrer to the complaint, but afterwards withdrew it and consented that default might be taken against it, which was done. Phillips and Childs neither answered or otherwise pleaded to the complaint, and default of each was duly entered. On March 29, 1902, foreclosure proceedings on Pike's complaint were had before the Fourth judicial district court sitting at Provo, and the court made its findings and entered a decree directing a sale of the mortgaged premises for the payment of the indebtedness due Pike, which the court found to be $ 3,214.60. In pursuance of the order of sale made by the court, the sheriff of Emery county, on May 14, 1902, sold said mining claims, at which sale Pike became the purchaser for the sum of $ 3,305, being $ 3.55 less than the aggregate amount of the judgment, interest and costs. The sheriff, on the last-mentioned date, issued and delivered to Pike a certificate of sale of said mining claims, which was duly recorded. On November 16, 1901, Childs and Phillips conveyed by quitclaim deed said mining properties to Snyder, the plaintiff herein. On November 4, 1902, Snyder, for the purpose of redeeming said property from mortgage foreclosure sale, delivered to the sheriff a bank certificate of deposit, payable in gold coin, for the sum of $ 3,504.33, on the Provo Commercial & Savings Bank at Provo City, Utah and also made proof to the sheriff that he (Snyder) was a redemptioner and had the right to redeem. The sheriff accepted and received the bank certificate of deposit and gave Snyder a certificate of redemption. The last day on which redemption could be had from the mortgage foreclosure sale was November 14, 1902, and on the 14th or 15th day of that month Pike, at Castle Dale, in pursuance of the certificate of sale held by him, demanded of the sheriff the money or a sheriff's deed for said mining claims, as called for by the certificate of sale. The sheriff tendered Pike the bank certificate of deposit left with him by Snyder for redemption, but Pike refused to accept the...