Williams v. Follett

• Decision Date: 30 November 1891
• Parties: WILLIAMS v. FOLLETT.
• Court: Colorado Supreme Court

28 P. 330

17 Colo. 51

WILLIAMS v. FOLLETT.

Supreme Court of Colorado

November 30, 1891

Appeal from district court, Arapahoe county.

Suit by George O. Follett against A. J. Williams, administrator, to recover on a judgment against his intestate. Judgment for plaintiff. Defendant appeals. Affirmed.

Syllabus by the Court

1. In the absence of a voluntary appearance, courts can obtain no jurisdiction to enter personal judgments for money against non-resident defendants having no property in the state.

2. By statute, a separate action at law to recover the balance unpaid upon a mortgage debt after sale of the mortgaged property under a foreclosure decree cannot be maintained in the state of New York, without prior consent of the court of chancery in which the foreclosure takes place.

3. But prior permission of the New York court of chancery, where a foreclosure has taken place, is not a necessary condition precedent to the maintenance of an action in Colorado against a resident of this state for the unpaid balance of the mortgage debt.

John H. Reddin and George L. Hodges, for appellant.

A B. Seaman, for appellee.

HELM C.J.

The transcript before us recites a number of transactions which we deem it unnecessary to detail. The following sufficiently presents the facts for the purposes of the present opinion In the year 1886, Milton F. Ufford and Morell F. Ufford executed an instrument of writing acknowledging an indebtedness in the sum of $2,500, and binding themselves, their heirs, executors, and administrators, jointly and severally, in the language usually employed in bonds, for the payment thereof on or before a certain date mentioned. This instrument, or bond, as it is called, was prepared in New York, where the original indebtedness accrued, and was signed and acknowledged by Milton F. Ufford in that state. Morell F. Ufford, however, had at the time become a resident of the state of Colorado, and he signed and acknowledged the instrument here. To secure payment of the same, Ina F. Williams, a resident of New York, though not a co-maker of the bond, executed a mortgage upon certain real property in that state. The debt being unpaid, after maturity suit was brought by Follett, the mortgagee, also the obligee in the bond, to foreclose the mortgage, Ina F. Williams and Milton F. Ufford being made parties. The suit resulted in a decree of foreclosure and order of sale, and also in a personal judgment against Milton F. Ufford for the surplus of the mortgage debt, if any, remaining unpaid after the sale. The property was subject to large prior incumbrances, and brought only a small proportion of the indebtedness. The money judgment in the decree against Milton F. Ufford, after deducting the proceeds of the sale, was for $2,979.92, considerable interest having accrued upon the original debt. Execution issued against Milton F. Ufford, and was returned nulla bona. In the mean time, and prior to the commencement of the foreclosure suit in New York, Morell F. Ufford died in Colorado, and his estate was in process of administration before the county court of Arapahoe county. A claim was filed by Follett, in pursuance of the statute, against this estate for the unpaid balance of his indebtedness. Objection being interposed, the county court disallowed the same. Appeal was taken to the district court, where, upon retrial, judgment was rendered in favor of Follett, and against the estate of Morell F. Ufford, for $3,130, being the unpaid balance of the original claim, with interest. To review that judgment the present appeal was taken.

The assignment of error mainly relied on is that the district court was without jurisdiction to adjudicate the claim in question. This assignment is predicated upon the following New York statute: 'Sec. 1628. While an action to foreclose a mortgage upon real property is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.' No permission was obtained from the New York court in which the foreclosure took place to present a claim or bring an action elsewhere for the unpaid balance of the mortgage debt. Counsel for appellant assert that without such prior permission the court below could take no jurisdiction over the matter. There is no doubt but that, in a controversy before a New York court between residents of that state, counsel's proposition would be correct; for the New York courts give the statute its plain and obvious effect. They hold that, under the circumstances specified by section 1628 and associated provisions, permission of the court in which a foreclosure takes place is a condition precedent to the commencement of a separate action at law for the unpaid balance of a mortgage debt. Those courts also declare that the granting of such permission is...