Young v. Vail

Decision Date07 January 1924
Docket Number2691.
CourtNew Mexico Supreme Court

222 P. 912

29 N.M. 324, 1924 -NMSC- 003


No. 2691.

Supreme Court of New Mexico

January 7, 1924

Rehearing Denied Feb. 18, 1924.

Syllabus by the Court.

The matters set up by a cross-complaint must relate to or be connected with the subject-matter of the original complaint, and the two constitute but one suit; and a new party cannot be brought in by cross-complaint unless his presence be necessary to a complete determination of the plaintiff's action.

When a new party, brought in by cross-complaint, appears, he becomes a party to the whole suit, and is bound by the judgment as to all matters which are or might be litigated therein, including the matters covered both by the complaint and by the cross-complaint; and, if the complaint be defective by reason of his not having been made a party, such defect is cured by such subsequent appearance.

The Code of Civil Procedure has not assumed to abolish the distinctions between law and equity considered as two complementary departments of our system of jurisprudence, nor to substitute new primary rights, duties, or liabilities for those embodied in either department of the municipal law.

In a suit to foreclose a mortgage, the parties have no right to a trial by jury of the issue of indebtedness, even though that be the only issue left in the case.

Where a court of equity acquires jurisdiction for the foreclosure of a mortgage, it may retain jurisdiction for the administration of full relief, both legal and equitable, and, as a part of such relief, may render a deficiency judgment, and the parties have no right to a jury for the trial of that issue.

The territorial equity courts had jurisdiction to render deficiency judgments in foreclosure suits, and, consequently, there was, prior to the Constitution, no right to jury trial for the adjudication of the amount of such deficiency, and, since the state Constitution guarantees to litigants the same right to trial by jury as existed prior to the adoption of the Constitution, a party is not now entitled, as a matter of right, to a jury for the trial of the issue of deficiency in foreclosure.

A defendant in a foreclosure suit, who voluntarily interposes a cross-complaint of a legal nature, is not entitled to a jury trial of the issues raised thereby.

It is not error for the court to hear evidence for the purpose of determining whether or not an injustice will be done by the granting of a motion to dismiss, where such motion is opposed on that ground by the adverse party.

One who pleads a breach of the contract, in consideration of which a mortgage is given, as a defense to a suit in equity for the foreclosure of such a mortgage, is not entitled to have the issues raised thereby tried by a jury.

Appeal from District Court, Colfax County; Leib, Judge.

Suit by John F. Vail against C. A. Young and W. C. Ferguson, in which defendants filed a cross-petition making the Maxwell Irrigated Land Company and another parties defendant. From a decree overruling defendants' demurrer to the complaint, and foreclosing a real estate mortgage, defendants Young and Ferguson appeal. Affirmed.

H. L. Bickley and H. A. Kiker, both of Raton, for appellants.

Crampton, Phillips & Darden, of Raton, for appellees.


Hettie Campbell and her husband executed and delivered to the Maxwell Irrigated Land Company their promissory note, together with a real estate mortgage to secure the payment thereof. This mortgage seems to have been subject to a first mortgage on the same premises. The Campbells sold the mortgaged premises to the appellants Young and Ferguson. The mortgage provided that in case of failure to pay taxes, interest, or other charges, the mortgagee might treat the whole of said indebtedness as due. The plaintiff, John F. Vail, thereafter filed his suit to foreclose, making the Campbells and their grantees parties defendant, alleging the foregoing facts and the default in the payment of taxes, interest, and other charges, and "that, after the execution [222 P. 913] and delivery of said second mortgage note and second mortgage deed, and before the maturity of said second mortgage note, the said Maxwell Irrigated Land Company, for value received and as collateral security, indorsed, assigned, pledged, and delivered said second mortgage note and second mortgage to the plaintiff herein, and that said plaintiff is now holder and owner thereof." The Campbells were served only by publication and did not appear in the suit.

The defendants Young and Ferguson demurred to the complaint on the grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action, for the reason that it does not show the indorsement of the note to the plaintiff; and (2) that there is a defect of parties to said action, in that the Maxwell Irrigated Land Company, the payee, is not either a party plaintiff or a party defendant, though the complaint shows on its face that the plaintiff, Vail, holds said note and mortgage as pledgee thereof for collateral security, and that the complaint shows on its face that said Maxwell Irrigated Land Company is a necessary party to a complete determination of the action. This demurrer was overruled.

Said defendants then filed their answer and a cross-complaint. By their answer they admitted the execution of both note and mortgage, but denied that there was any indebtedness due the plaintiff on account of said note. By their cross-complaint they brought into the action, as new parties, the Maxwell Irrigated Land Company, payee, and another corporation not necessary to be considered, and after notice said new parties appeared in said action, through the same attorneys as those representing the plaintiff, and filed replies to the cross-complaint, as did also the plaintiff, Vail, named also as a cross-defendant. By their cross-complaint said defendants alleged failure of consideration and damages. They also alleged notice to the plaintiff of the facts so alleged at the time of the transfer of the note and mortgage in suit by the payee to the plaintiff. The material allegations of the cross-complaint were denied by the plaintiff and by the new parties.

The issues being made up, said defendants, on the call of the docket, demanded a jury trial, which the court denied. Some months thereafter, the case having been called for trial, said defendants demanded, first, a jury trial upon the issues raised by plaintiff's complaint and the answer thereto, and, second, a jury trial upon the issues raised by the cross-complaint filed by said defendants and the replies thereto, and offered to pay such jury fees as should be required by the court. They then separately demanded a trial by jury upon the issues raised by the cross-complaint, and offered to pay such jury fees as the court should require, which demand was also overruled. Said defendants then moved the dismissal of their cross-complaint, whereupon objection thereto was made by plaintiff and cross-defendants, in substance, that said defendants had known, since the previous ruling of the court, that they would not be granted a jury trial, and that the plaintiff and cross-defendants had expended a large sum of money in the preparation of the case for trial at that time, and had brought witnesses from the state of Colorado who were material in the trial of the issues raised by the cross-complaint, for none of whom plaintiff or cross-defendants could claim witness' fees beyond the state line; that the situation of the parties was the same as though said defendants had filed their complaint and the plaintiff, Vail, had filed the substance of his complaint as a counterclaim thereto, so that said defendants had no right to dismiss without the consent of the plaintiff; that the dismissal of the cross-complaint at that time would prejudice the plaintiff, Vail, and the other cross-defendants, in that they had no assurance that they would be able to produce their witnesses from outside the state at a later trial, and had no right by compulsory process to bring them within the jurisdiction of the court. Plaintiff and cross-defendants then offered to prove the facts stated in their objections to a dismissal of the cross-complaint, which the court permitted them to do.

The court found that plaintiff and cross-defendants had procured the attendance of a number of nonresident material witnesses at great expense, and also had obtained and had in court a considerable amount of documentary evidence which is regularly kept outside of the state of New Mexico, and that the defendants, having known for a long time that the court would deny, and had already denied to them, a jury trial, and having known for 20 days prior to the date of trial that said cause would then come on regularly to be heard before the court without a jury, carelessly and without due regard to the rights or equities of plaintiff and cross-defendants, failed or omitted to dismiss or give notice that they intended to dismiss or to ask for the dismissal of their cross-complaint, and permitted said plaintiff and cross-defendants to prepare and be ready for trial at that time upon the issues made upon the cross-complaint and pleadings filed in reply thereto, and that the plaintiff and other cross-defendants would be materially prejudiced in the making of their defense to said cross-complaint if suit should thereafter be brought thereon. The court thereupon denied the motion to dismiss. The defendants elected to stand upon their demurrer and motions, and to proceed no further in the trial. The court then heard the evidence [222 P. 914] in support of the complaint and entered a decree for the foreclosure of the mortgage, as well as against said defendants on their cross-complaint. From that decree, the defendants Young and Ferguson have appealed to this court.

The first point made by appellants is that the court erred in...

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