T.C. Power & Bro. v. Murphy

• Decision Date: 31 March 1902
• Parties: T. C. POWER & BRO. v. MURPHY et al.
• Court: Montana Supreme Court

68 P. 411

26 Mont. 387

T. C. POWER & BRO. v. MURPHY et al.

Supreme Court of Montana

March 31, 1902

Appeal from district court, Choteau county; Dudley Du Bose, Judge.

Action by T. C. Power & Bro., a corporation, against John T. Murphy and others. From a judgment for plaintiff and an order denying a new trial, defendants Murphy and another appeal. Appeals dismissed.

M Bullard and H. G. McIntire, for appellants.

Walsh & Newman, for respondent.

PIGOTT J.

These are appeals by Murphy and Chipman, two of the defendants from the judgment and an order overruling their motion for a new trial. The respondent moves the dismissal of the appeals upon the grounds--First, that the appellants have not filed their brief within the time required by the rules of this court; and, secondly, that notice of the appeals was not served upon the defendants George D. Patterson and wife, or on either of them.

The action was brought on a note for $3,000, made by Patterson to the plaintiff's assignor, the payment of which was secured by a mortgage executed by Patterson and wife. The object of the action was to procure a sale of the property mortgaged, the foreclosure of the equity of redemption of each of the defendants, and a personal judgment against George D. Patterson in the event the proceeds of such sale should be insufficient to satisfy the amount due to the plaintiff. The Pattersons were duly served with summons and a copy of the complaint. They made default. The defendants Murphy and Chipman, by answer (which, so far as the transcript discloses, was not served upon the Pattersons), denied the execution of the note and mortgage or that anything was due or owing upon either, and pleaded affirmatively that at the time the mortgage was made they owned, and still own, undivided interests in the land described in the mortgage, and then had, and ever since have held, a lien upon Patterson's interests therein paramount to the mortgage lien asserted by the plaintiff. Upon trial of the issues joined between the plaintiff and Murphy and Chipman, the court found that the plaintiff's mortgage was the first lien upon a certain part of the land, superior to the title and to the lien of Murphy and Chipman, and further found that Murphy and Chipman's lien on the remainder of the land was superior to that of the plaintiff's mortgage. Judgment in accordance with the findings was entered for the sale of the land and the application of its avails toward satisfaction of the mortgage debt due to the plaintiff, and (if the proceeds of sale should be insufficient to liquidate the plaintiff's demand) for the docketing of a deficiency judgment against the defendant George D. Patterson, who was personally liable on the note. Murphy and Chipman moved for a new trial, addressing the notice of intention to, and serving it upon, the Patterson. The motion was denied. Murphy and Chipman then served notice of their appeals from the judgment and order denying a new trial, but neither directed the notice to, nor served it upon, Patterson or his wife. Patterson has not appeared in this court; hence the question whether his voluntary appearance would remedy the omission to serve notice of appeal upon him is not presented.

By failing to answer the complaint, Patterson admitted the material allegations therein contained to be true, and this is all he admitted. His default was tantamount to consent that a judgment in accord with the averments of the complaint might be entered against him. That pleading did not tender any issue to him with respect to Murphy and Chipman's lien or title. A party to a judgment whose rights may be injuriously affected by its reversal or modification is entitled to...