Stevens v. Osgood

• Decision Date: 30 June 1904
• Citation: 100 N.W. 161,18 S.D. 247
• Parties: FRANK E. STEVENS, Plaintiff and, v. F. L. OSGOOD et al., Defendants, Grandy, Defendant and appellant
• Court: South Dakota Supreme Court

18 S.D. 247

100 N.W. 161

FRANK E. STEVENS, Plaintiff and,

v.

F. L. OSGOOD et al., Defendants, Grandy, Defendant and appellant South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. Chas. H. Whiting, Judge Affirmed Wood & Fairbank Attorneys for appellant. Crawford & Taylor Attorneys for respondent. Opinion filed June 30, 1904

FULLER, J.

At the trial of this action to foreclose a mortgage on real property, plaintiff had judgment, and the defendant Grandy appealed therefrom and from an order overruling his motion for a new trial. The essential facts may be stated thus: Default being made in the payment of certain interest, as well as the principal sum secured by the mortgage, which contains a power of sale, and matured November 1, 1890, plaintiff commenced a statutory proceeding on the 1st day of October, 1902, to foreclose by advertisement, whereupon an order was obtained from the judge of the circuit court, restraining the procedure, and requiring foreclosure by action in accordance with section 636 of the Revised Code of Civil Procedure.

Such orders are justified only when it appears by affidavit, to the satisfaction of the judge, that “the mortgagor has a legal counterclaim or any other valid defense against Ike collection of the whole or any part of the amount claimed to be due on such mortgage,” and the only defense here interposed was:

“That the note and mortgage alleged in plaintiff’s complaint became due and payable on the 1st day of November, 1890, and that no payment of principal or interest has ever been made on either the alleged note or mortgage, or the debt alleged to be secured thereby, since the 1st day of November, 1888. That this action was not commenced within six years after the cause of action on the alleged note and mortgage, or either of them, accrued.”

Manifestly, the ex parte steps taken by the mortgagee or his assignee to execute the irrevocable power of sale given by the mortgagor as a part of the security are in no respects included within the following statutory definition:

“An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”

Section 12, Rev. Code Civ. Proc. A proceeding to foreclose a mortgage by advertisement is not an action, because no right is litigated between parties, nor is the power of a court of law or equity invoked. Hall v. Bartlett, 19 Barb. 297.

It is needless to discuss the different periods within which the remedy by action is available in this state, for the reason that, independently of the equitable defense...