State v. District Court of Twelfth Judicial Dist. In and For Blaine County

• Decision Date: 05 February 1917
• Docket Number: 3972.
• Citation: 163 P. 1149,53 Mont. 235
• Parties: STATE EX REL. RESER v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. IN AND FOR BLAINE COUNTY ET AL.
• Court: Montana Supreme Court

163 P. 1149

53 Mont. 235

STATE EX REL. RESER v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. IN AND FOR BLAINE COUNTY ET AL.

No. 3972.

Supreme Court of Montana

February 5, 1917

Certiorari by the State of Montana, on the relation of Evert Reser against the District Court of the Twelfth Judicial District in and for Blaine County and Hon. John A. Matthews, of the Fourteenth District, Judge presiding, to review and annul a purported judgment. Judgment and all proceedings had thereunder annulled.

R. E O'Keefe, of Chinook, for appellant.

McKenzie & McKenzie, of Great Falls, for respondents.

SANNER J.

On July 8, 1916, the clerk of the district court of Blane county received and filed the findings of fact and conclusions of law as made and forwarded by Hon. John A. Matthews, judge presiding, in a certain cause then pending in that court wherein the Security Trust & Savings Bank of Charles City Iowa, was plaintiff, and Evert Reser, Katherine Reser, and Bertha G. Reser were defendants, which cause had been theretofore submitted for decision. These findings show that the action was to foreclose certain mortgages, to wit, one upon real estate, and one upon chattels, given to secure promissory notes aggregating $2,630 principal, which notes were executed and delivered by the defendants Evert and Katherine Reser in payment or part payment of a certain traction engine and plow outfit constituting, with some 16 head of horses, the chattel security referred to; and in the conclusions of law it is declared that the plaintiff is entitled to a decree of foreclosure of said mortgages, to judgment for the sum of said notes, with interest and attorney's fees, and to a decree or order of sale of said property or so much thereof as may be necessary. Thereafter and without any order or direction from the court or any further action by the judge thereof, but on motion of the attorneys for the plaintiff, the clerk signed, filed, and entered what purports to be a final judgment in the cause, reciting that the court had carefully considered all the evidence presented, had examined the authorities cited, and had made its findings and conclusions of law (which findings and conclusions are neither inserted nor otherwise referred to), and adjudging and decreeing that plaintiff recover from the defendants $3,593.25, the amount of principal, interest, attorney's fee, and costs; that both defendants, and each of them, are personally liable therefor; that the same is a valid lien upon the lands and personal property described in the mortgages; that said property, or so much thereof as may be sufficient be sold; that plaintiff is entitled to and may purchase said property at such sale; and that the defendants, including Bertha Reser, and "all persons claiming from or under them, or either of them, and all persons claiming to have acquired any estate or interest in or to said premises subsequent to the filing of the notice of the pendency of this action, as set out in said findings (no reference is made in the findings to any such notice), be forever barred and...