W. Sur. Co. v. Schroeder
| Decision Date | 30 January 1922 |
| Docket Number | No. 5017.,5017. |
| Citation | 186 N.W. 562,45 S.D. 115 |
| Parties | WESTERN SURETY CO. v. SCHROEDER et al. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lincoln County; John T. Medin, Judge.
Action by the Western Surety Company against Claudia Schroeder and another. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.Herbert B. Rudolph, of Canton, for appellants.
Boyce, Warren & Fairbanks, of Sioux Falls, for respondent.
Action brought to foreclose a real estate mortgage securing two notes, both dated March 1, 1919, one due March 1, 1921, the other due March 1, 1929. In the complaint upon such foreclosure, plaintiff sought to recover, not only the principal alleged to be due upon said notes, but some overdue interest on same. This action was not instituted until after March 1, 1919, when one of said notes became due. The mortgage provided that, in case of default in the payment of the principal sum or any part thereof, the whole principal and interest shall, at the option of the holder, become due and payable; and the complaint alleged that plaintiff had exercised the option and declared the whole sum due and payable. Attached to the complaint was a copy of the mortgage and an assignment thereof to the plaintiff. In such assignment there did not appear the address of the assignee. Defendants demurred to the complaint upon the ground that it did not state a cause of action. Such demurrer being overruled, defendants have appealed from the order overruling same.
[1] Respondent calls attention to the fact that appellants' brief contains no assignment of error, and that therefore this court has no jurisdiction to pass upon the correctness of the trial court's rulings. This appeal was solely from the order overruling the demurrer; and, while it is true that there is no assignment in the brief, there can be no question as to the exact error complained of. Under such circumstances, this court would hardly feel justified in disregarding the merits of the case and dismissing the appeal for want of jurisdiction; but would rather feel bound to permit an amendment of the appellants' brief by an insertion therein of an assignment presenting the error complained of. To avoid delay incident to allowing appellants to amend, we will treat the brief as though it were already so amended, and will dispose of the appeal upon its merits.
[2] Appellants' sole claim is that, under sections 1571, 1572, R. C. 1919, no foreclosure can be brought by the assignee of a mortgage until his address appears properly recorded in the register of deeds' office. Section 1571, supra, provides for filing with the register of deeds a statement of the post office address of an assignee of a mortgage, and for the entry of such address upon the margin of the mortgage record; and section 1572, supra, reads:
“No interest shall become due and collectible by the mortgagee or owner of any mortgage upon any real estate in the state of South Dakota until the provisions of the preceding section have been complied with.”
...
To continue reading
Request your trial