Sprowls v. Sprowls

• Decision Date: 08 June 1914
• Docket Number: 3556.
• Citation: 147 N.W. 645,34 S.D. 140
• Parties: SPROWLS v. SPROWLS et al.
• Court: South Dakota Supreme Court

147 N.W. 645

34 S.D. 140

SPROWLS v. SPROWLS et al.

No. 3556.

Supreme Court of South Dakota

June 8, 1914

Appeal from Circuit Court, Sully County; J. H. Bottum, Judge.

Action by A. C. Sprowls against A. H. Sprowls and others. From a judgment granting plaintiff insufficient relief, he appeals. Reversed and remanded, with directions.

Newell N. Powell, of White Rock, and Luse, Powell & Luse, of Superior, Wis., for appellant.

Sutherland & Payne, of Pierre, for respondents.

McCOY J.

In October, 1907, appellant, A. C. Sprowls, and respondent Smith, then being the owners, as tenants in common, of certain real estate situated in Sully county, jointly executed and delivered to one Krahn, as mortgagee, a certain mortgage upon said real estate to secure the payment of a note for $2,000, signed by appellant and respondent Smith due three years after date, and which note represented a joint debt owed by them. This Krahn mortgage was duly recorded on the 18th of October, 1907. On the 4th day of March, 1909, respondent Smith executed and delivered to respondent A. H. Sprowls, as mortgagee, a mortgage upon the undivided individual interest of said Smith in said land to secure an individual debt of Smith to respondent Sprowls. When the note and mortgage to Krahn became due, and the same not having been paid by the said makers thereof, said note was paid by respondent A. H. Sprowls. In the month of January, 1911, Smith executed and delivered to respondent Rotcher a deed of his undivided one-half interest in said real estate. Thereafter respondent A. H. Sprowls secured a judgment jointly against the appellant and said Smith on said $2,000 Krahn note, in the courts of the state of Illinois, to the amount of $2,079.67, and in May, 1911, respondent Sprowls, as plaintiff, commenced an action in the circuit court of Sully county against the appellant and said Smith as defendants, but only made service of process upon appellant. At the time of the commencement of said last-mentioned action, a warrant of attachment was issued therein, on the ground of nonresidence of appellant, and a levy was made thereunder alone on the interest of appellant in said real estate; and, appellant not appearing, such action proceeded to judgment, and an execution issued, and on the 18th day of November, 1911, the undivided individual share of appellant in said real estate was alone sold to A H. Sprowls, respondent, for the sum of $2,234.89, being the full amount of principal, interest, and cost due on said Illinois judgment, and which execution was returned fully satisfying said judgment.

Appellant as plaintiff, instituted this action against respondents Sprowls, Rotcher, and Smith, as defendants, claiming to be subrogated, through A. H. Sprowls, respondent, to one-half interest in said $2,000 Krahn note and mortgage indebtedness to protect the common interest of appellant as against the common interest of said Smith, which was liable for the payment of one-half of said indebtedness, and those claiming under him subsequent to the recording of the Krahn mortgage, and seeks to have one-half of the said Krahn indebtedness foreclosed as against the interest or common share in said land formerly owned by said Smith. On the trial the facts hereinbefore stated, among others, were found, and conclusions of law made therefrom as follows:

"That plaintiff's action is without equity as to A. H. Sprowls; that at the commencement of this action plaintiff had an adequate remedy at law as to A. H. Sprowls; that plaintiffs should be subrogated to the right of Rotcher; that said action be dismissed as to A. H. Sprowls."

And judgment being accordingly entered thereon, plaintiff appeals,...