Union Bond & Mortgage Co. v. Brown
| Decision Date | 09 November 1936 |
| Docket Number | 7924. |
| Citation | 269 N.W. 474,64 S.D. 600 |
| Parties | UNION BOND & MORTGAGE CO. v. BROWN et al. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.
Action by the Union Bond & Mortgage Company against A. H. Brown, H P. Brown, and others. From a judgment for plaintiff, the defendant A. H. Brown appeals.
Affirmed.
W. M Potts, of Mobridge, and Sterling, Clark & Grigsby, of Redfield, for appellant.
Churchill & Benson, of Huron, for plaintiff-respondent.
Longstaff & Gardner, of Huron, for defendant-respondent H. P. Brown.
The above cause is now before us for disposition on the merits and the first question to determine is just what matters are open for our consideration. In so far as this purports to be an appeal from the denial of new trial below, it has already been dismissed as to defendant-respondent H. P. Brown (same title [1936 S.D.] 266 N.W. 720) and likewise by Per Curiam opinion this day filed as to plaintiff-respondent Union Bond & Mortgage Company (same title [S.D.] 269 N.W. 472). As pointed out in the opinion last cited, the right of plaintiff-respondent to such dismissal is derivative from the right of H. P. Brown. Appellant cannot present as against Union Bond & Mortgage Company any different or more comprehensive questions than he has entitled himself to present as against defendant-respondent H. P. Brown.
It must be remembered that appellant not only failed to serve notice of intention to move for new trial upon H. P. Brown, but likewise failed to serve him with transcript of testimony and specifications of error (see same title [S.D.] 266 N.W. 720). H. P. Brown, therefore, is not bound either by the attempted proceedings to move for new trial or by the proceedings looking toward the settlement of the record. So far as he is concerned, the appeal amounts, in substance, to an appeal from the judgment only, taken upon the judgment roll, and he is not bound to meet any contentions of appellant which require as a prerequisite to their consideration either the settlement of a record or the making of a motion for new trial and appeal from the denial thereof. It necessarily follows that no other questions can be raised by appellant as against Union Bond & Mortgage Company. Consequently the matter must stand as to both respondents as an appeal from the judgment only, upon a judgment roll, without a settled record, and without a motion for new trial prior to judgment, the judgment in this case having been entered in November, 1935, and the motion for new trial not having been made until January 6, 1936. Cf. Gade v. Collins (1896) 8 S.D. 322, 66 N.W. 466; Hagaman v. Gillis (1896) 9 S.D. 61, 68 N.W. 192; Keyes v. Baskerville (1919) 42 S.D. 381, 175 N.W. 874. To review errors in law occurring at the trial and excepted to (R.C.1919, § 2555, subd. 7) requires a settled record, and to review the sufficiency of the evidence to support the findings requires both a settled record and an appeal from the denial of a new trial. See Keyes v. Baskerville, supra. The only claims of error, therefore, which appellant is in position to urge upon this record, either as against Union Bond & Mortgage Company or as against H. P. Brown, are those embraced in assignment No. 1 questioning the jurisdiction of the trial court over the person of A. H. Brown for the purposes of this action, and in certain other assignments challenging the sufficiency of the findings of fact to support the conclusions of law and judgment.
For the consideration of the first assignment a brief statement of relevant facts is essential. Appellant A. H. Brown resides at Mobridge in this state and is accustomed to spend his winters in Florida. He has a brother H. C. Brown, now one of the defendants in this action, who resides at Iroquois, S.D. In April, 1929, appellant executed and delivered to his brother H. C.
Brown a warranty deed covering a quarter section of land in Armstrong county, S. D.; the name of the grantee being left blank. Thereafter, and in April, 1930, H. C. Brown, with the assistance of one Flowers, traded this Armstrong county land for certain property in the city of Springfield in this state. The name of the owner of the Springfield property was filled in as grantee in the deed from A. H. Brown covering the Armstrong county land, and title to the Springfield property appears to have been taken in the name of H. C. Brown. Subsequently, and in August, 1930, H. C. Brown and Flowers traded the Springfield property to one H. P. Brown, a resident of Huron, for two pieces of property in the city of Huron. Upon this trade one of these Huron properties was deeded to Flowers, the associate of H. C. Brown in the transaction, and is in no manner involved in this proceeding. Deed to the other property acquired on the trade was taken, however, at the request of H. C. Brown, in the name of his brother, the appellant herein, and was so executed by the grantor H. P. Brown. Before the property thus deeded to A. H. Brown was acquired by H. P. Brown, it had been owned by Herman Strobel and Amanda, his wife, who in March, 1929, had executed and delivered to plaintiff Union Bond & Mortgage Company a first and a second mortgage thereon. The Strobels had transferred the property in March 1930, to H. P. Brown by warranty deed containing a clause whereby the grantee assumed and agreed to pay the two mortgages thereon. When H. P. Brown, as part of his trade with H. C. Brown and Flowers, and at the request of H. C. Brown, conveyed this property to A. H. Brown, the appellant, he likewise conveyed by warranty deed containing an assumption clause as to the two mortgages. The deed from H. P. Brown to A. H. Brown was executed August 25, 1930, and recorded October 20, 1930. March 25, 1931, appellant A. H. Brown executed a warranty deed with assumption clause conveying the property in question to his brother H. C. Brown, which deed was delivered to and accepted by the grantee shortly after its execution but was never placed of record. In November, 1932, plaintiff mortgage company instituted the present action to foreclose upon this property, naming as defendants Herman Strobel and his wife, who had given the mortgages; H. P. Brown, who had assumed the mortgages by virtue of the clause in the deed from the Strobels to him; A. H. Brown, who, as the records indicated, had likewise assumed the mortgages by virtue of the clause in the deed from H. P. Brown to him; Best & Williams Land Company, a corporation; and H. C. Brown. The last two defendants had never held record title to the premises nor assumed payment of these mortgages so far as plaintiff was advised, nor was any personal judgment asked against them, the allegations of the complaint so far as they were concerned being that they claimed to have some interest in or lien upon the premises, the exact nature of which was unknown to plaintiff, but that said interest, whatever it might be, was junior and inferior to the rights of plaintiff under its mortgages; and the prayer was for an adjudication to that effect. As to the other defendants, plaintiff sought foreclosure of its mortgages and asked personal judgment for any deficiency against the Strobels, H. P. Brown, and A. H. Brown. The summons in the case was personally served upon A. H. Brown in the state of Florida on December 22, 1932, and upon the other defendants within this state. Defendants H. C. Brown and Best & Williams Land Company defaulted, and no answer was interposed or appearance made by defendant A. H. Brown. The Strobels answered, admitting, in substance, the allegations of the complaint and admitting their personal liability, but alleging that their liability was secondary to that of the subsequent grantees who had assumed the mortgages in their deeds, H. P. Brown and A. H. Brown. H. P. Brown answered, also admitting the facts and admitting his liability, but alleging the same to be secondary to that of the subsequent assuming grantee A. H. Brown. Upon the issues made by the answering defendants and affidavit of default as to the others, the matter came on for trial which resulted in findings, conclusions, and judgment in favor of plaintiff on March 2, 1933, determining the interest of Best & Williams Land Company and H. C. Brown in the premises, if any, to be subsequent and inferior to plaintiff's mortgages and awarding foreclosure of the mortgages to satisfy the amount due including costs of sale ($3,108.46 in all) and granting personal judgment for the deficiency that might arise, if, any, against A. H. Brown, H. P. Brown, and the Strobels in the order named. Special execution issued and the property was sold for $1,500 and the sale confirmed by the court on April 21, 1933, leaving a deficiency of $1,608.46.
Thereafter, and on August 17, 1933, defendant-appellant A. H. Brown made his first appearance in the case by filing an affidavit and seeking a show cause order from the trial court. His affidavit and application was in the following form, omitting signatures:
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