4 Utah 357 | Utah | 1886
Lead Opinion
On tbe tenth March, 1884, A. K. Thornton gave bis note and mortgage to James Obipman for $500, and these were assigned to appellant. On the twenty-sixth July, 1884, appellant entered suit in first district court against Thornton to recover tbe amount of said note, and also of another
Upon a trial of the case, the lower court found, as a conclusion of law, that the judgment by confession was null and void, and that that action was. pending and undetermined when Thornton gave the Bacon note and mortgage; also that appellant was not entitled to a foreclosure of his mortgage; but that Bacon was authorized and entitled to a foreclosure of his mortgage. The court gave judgment accordingly, and thereupon said Baybould appealed the case to this court.
The appellant maintains that the judgment by confession, made by Thornton in favor of appellant, is valid, and a prior lien to the mortgage sought to be foreclosed by respondent, (Bacon). Thornton made what purported to be a confession of judgment. It was made ' through the
The appellant further maintains that the mortgage of the tenth March, 1884, made by Thornton to Chipman, and assigned to him, is a valid prior lien to that of the respondent. The appellant held a $500 note of Thornton, secured by that mortgage. That note was one of the notes -sued in the action wherein Thornton essayed to make a confession of judgment. The appellant laid aside his mortgage lien, and sued in that action simply on the note, and did not ask any foreclosure of his mortgage, but instead thereof he sought and obtained a writ of attachment. In order to get his writ of attachment, he filed, as required by law, an
In this territory there can .be but one action for the recovery of any debt, or the enforcement of any right, secured by mortgage or other lien on real estate. This is our statute. Comp. Laws, 474 (1471), sec. 246; Laws, 1884, p. 268, sec. 606. The allowance of appellant’s cross-complaint would be a nullification of that statute. A party having one suit, either pending or in judgment, for a debt secured by mortgage, cannot have another action for the recovery of the same debt. His whole claim must be embraced in one suit. There is no reason why this could not have been done in regard to the debt of appellant. This is the rule in California under a similar statute: Porter v. Muller, 65 Cal., 512; S. C. 4 Pac. Rep., 531; Ould v. Stoddard, 54 Cal., 613; Eastman v. Thurman, 24 Cal., 382.
Upon the whole case, therefore, we see no reason for reversing the judgment of the court below, and it is therefore affirmed.
Concurrence Opinion
concurred.
A petition for a rehearing having been filed, 'it was denied, and the following opinion was filed.
We are inclined to tbink that counsel misconceived tbe purport of tbe opinion in tbis case. It must be read, as every opinion should be, with a view to tbe parties to tbe action. Tbe parties to tbis action are not tbe same as to tbe action in wbicb tbe confession of judgment was claimed to bave been made. Tbis is not a contest between tbe plaintiff and defendant in tbat action, and wbetber tbe confession of judgment was valid and binding between tbe parties to tbat action is not a question in tbe case under consideration. We simply beld tbat such confession of judgment was void as to creditors of the defendant in that action, not made parties to it.
The debt was bona fide; but, in obtaining tbe judgment, tbe statute as to confessions of judgment was not followed, and, therefore, as to such third parties, it was not a judgment binding upon such third parties. Tbis is in accordance with tbe analogies of tbe law. For example, a complaint may contain a defective statement of necessary facts; and, if not demurred to, it will be beld sufficient to sustain a judgment; but it is not so if there be a failure to state necessary facts. Tbe pretended confession of judgment failed to state any facts out of wbicb tbe indebtedness arose, as required by tbe statute. It was not a case of a defective statement of such facts.
As to tbe other branch of tbe case, namely, tbe waiver of tbe mortgage by attachment and seeking personal judgment, we see no reason to modify our views. It is not a question in tbis case whether tbe plaintiff in tbe action in wbicb tbe confession of judgment was sought to be entered, could or could not, by bis own act, separate tbe security so as to obtain personal judgment, as nothing of tbe kind was done, or sought to be done, by tbe plaintiff, “by his own act.” It was tbe joint act of tbe plaintiff and defendant in that action — it was a consent proceeding. Nor do we tbink it material to tbe case at bar wbetber, upon a foreclosure suit, a plaintiff may, as an additional security, bave an attachment issued, as tbe action in wbicb tbe intended confession of judgment was entered was not a
We do not see that it is material in the present case whether or not the plaintiff in the former action could have amended his complaint so as to have included foreclosure, as nothing of the kind seems to have been done or sought to be done. Having failed in asking to so amend his complaint in that action, the plaintiff therein (appellant here) seeks to accomplish the same result by his cross-complaint in the present action. We think he is too late. He cannot have two actions to enforce the collection of the same claim thus secured by mortgage. “There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage:” Code Civil Proc., sec. 606; Laws Utah 1884, p. 268.
We do not think that the petition shows any good grounds for granting a rehearing. The alleged grounds are substantially such as were considered at the hearing of the case, and the court is slow to grant a rehearing, except upon some new considerations which did not appear on the first hearing. The rehearing is denied.