Tweto v. Horton

• Decision Date: 13 November 1903
• Docket Number: 13,625 - (75)
• Citation: 97 N.W. 128,90 Minn. 451
• Parties: A. K. TWETO v. L. E. HORTON
• Court: Minnesota Supreme Court

97 N.W. 128

90 Minn. 451

A. K. TWETO v. L. E. HORTON

Nos. 13,625 - (75)

Supreme Court of Minnesota

November 13, 1903

Action in the district court for Wilkin county to recover possession of certain horses, or $150, the value thereof, in case possession could not be had. The case was tried before Flaherty, J., who found in favor of defendant. From a judgment entered pursuant to the findings, plaintiff appealed. Affirmed.

SYLLABUS

Settled Case -- Practice.

Although the court has no authority to extend the time within which to propose and settle a case or bill of exceptions upon application ex parte, and without notice to the opposite party, yet, if finally the case is settled upon proper notice, and the various extensions made ex parte were for reasonable cause, and the final settlement of the case did not prejudice the opposing party, such order of settlement will not be considered as an abuse of discretion.

Chattel Mortgage.

A first chattel mortgage upon certain personal property contained the declaration that the mortgagor resided in a certain township and county, and a second mortgage upon the same property contained a similar declaration. Held, in an action by the first mortgagee, or his assigns, as against the second mortgagee, for the possession of the property, such declaration as to the place of residence constituted prima facie evidence of the fact of such residence. Nickerson v. Wells-Stone Mercantile Co., 71 Minn. 230 distinguished.

Assignment of Note.

The assignment and transfer of a promissory note secured by a chattel mortgage carries the security, without a formal assignment of the mortgage.

Law of North Dakota -- Record in Minnesota.

The laws of North Dakota require that the certificate of acknowledgment, when made before a justice of the peace, must be accompanied by a certificate, under the hand and seal of the clerk of court, setting forth that the justice was authorized to take the same, and that the clerk was acquainted with the handwriting, and believes the signature to be genuine. Held, without such certificate of the clerk of court, a chattel mortgage executed on personal property situated temporarily in North Dakota is not entitled to be filed in the township of Minnesota where the mortgagor resides, and, if so recorded, is not constructive notice to subsequent mortgagees and purchasers in good faith.

Lyman B. Everdell and Ezra G. Valentine, for appellant.

McCumber Bogart & Forbes, for respondent.

OPINION

LEWIS, J.

One Brawders executed a chattel mortgage to Tweto & Jacobson on certain personal property to secure promissory notes. The mortgage was executed and acknowledged in North Dakota, where the property was then located, and was recorded in Wilkin county, Minnesota, where it is claimed the mortgagor resided. Thereafter the notes were assigned and transferred to appellant. Respondent having taken possession of the property in foreclosure proceedings under a second mortgage, this action was brought in replevin to recover possession thereof.

1. On the first day of the term, respondent moved for an order striking from the files the settled case upon the ground that it was not served or settled within the time or in the manner required by law. The order for judgment in the court below was dated October 25, 1901, and on November 7 following the court made an order ex parte, on motion of the plaintiff, extending the time for serving a proposed case or bill of exceptions sixty days from the date of the order. On January 1, 1902, another order was made, ex parte, extending the time sixty days, and on February 28 following another order was made extending the time to April 1. On March 19, the proposed case was served upon respondent's attorneys by mail, and was returned with the objection that it was not served in time. On March 20, it was served personally, and was returned with the same objection. March 31, appellant served another notice that the proposed case would be presented to the district judge for settlement and allowance on April 5. April 2, notice was given to respondent's attorneys that application would be made on April 5 for a further extension of time to April 10; and on April 5 an order was made extending the time to April 10, at which date the court made an order settling the case. Objection was made by respondent's attorneys to the extension of time and to the allowance of the case upon the ground that the time had expired, and that no valid order had ever been made enlarging it, within which to serve the case.

In State v. Searle, 81 Minn. 467, 84 N.W. 324, a proposed case was returned by plaintiff for the reason that it had not been served in time. Thereafter defendants served notice that on a certain day of the special term of the district court which was after the time had expired, application would be made for an order settling and allowing a proposed case. The trial court denied the application, and the order was sustained upon the ground that, although the proposed case had been served in time, yet, it having been returned, and the time for the settlement of the case having expired at the date set for the hearing, the court was not required,...