163 N.W. 1061 | N.D. | 1917
This case has been before the court once before upon an appeal from an order of the district court sustaining a demurrer to the complaint. This court reversed the order of the district court and held that the complaint stated a cause of action. After the reversal of the order, separate answers were filed in the district court on behalf of two groups of defendants, — one on behalf of the North American Coal & Mining Company, J. L. Trevillyan, E. B. Nicoll, and J. L. Ludwig, and one on behalf of the Investors’ Syndicate and John E. Tappen. To these answers the plaintiff interposed demurrers, which were overruled by the district court; and, from the order overruling them, this appeal is taken. Yarious phases of the litigation between these parties, involving the transactions set forth in the complaint and answers, have heretofore been before this court, and its history can be traced by refer-
The facts stated in the complaint are summarized in the case of Beyer v. North American Coal & Min. Co. 32 N. D. 542, 156 N. W. 204, and need not be repeated here. For convenience, and in the interest of a clear understanding of the questions presented upon this appeal, we will consider the two answers separately. The answer of the North American Coal & Mining Company, Trevillyan, Nicoll, and Ludwig, contains a denial of all of the allegations of the complaint, •except as admitted or qualified. Paragraph 3 of the answer alleges the execution of a note by the North American Coal & Mining Company and Williams to the Investors’ Syndicate for the sum of $1,118.43. Paragraph 4 alleges the execution of a mortgage by the Coal & Mining ■Company securing the payment of the above note. Paragraphs 5 and fi allege the execution of the Letts note and mortgage of $500 to Dana, and its various transfers from Dana to Beyer, from Beyer to the Coal .and Mining Company and from the Coal & Mining Company to the Investors’ Syndicate. Paragraph 7 alleges as the only consideration for the assignment of the Dana mortgage, the $1,118.43 note from the Coal & Mining Company to the Investors’ Syndicate. Paragraph •8 sets up the foreclosure proceedings under the Dana mortgage, wherein the Investors’ Syndicate was given a judgment-against various defend■ants and Beyer, intervener, for the sum of $2,524.99, which judgment •decreed the amount thereof to be a lien upon the premises covered by the mortgages, directed the sale of the premises in payment of the debt, and •decreed that Beyer, intervener, had no interest in the premises. Paragraph 9 sets up the foreclosure proceedings under the mortgage of the North American Coal & Mining Company to the Investors’ Syndicate, wherein a final judgment was entered against the plaintiff and in favor •of the Coal &• Mining Company and Beyer, intervener, which judgment was affirmed by this court in the case of Investors’ Syndicate v. North American Coal & Min. Co. 31 N. D. 259, 153 N. W. 472. Digressing for a moment to note the attitude assumed by the officers of the coal
Whether or not the foregoing answer it demurrable depends upon whether the purported new matter set forth therein constitutes either a counterclaim or defense. Comp. Laws 1913, § 1152. It is manifestly conceded in this answer that, so far as the Investors’ Syndicate is concerned, some party, either the plaintiff or the answering defendants, are entitled to the relief sought in the complaint. The sole-inquiry is as to who is entitled to this relief.
The complaint states facts which entitle Beyer to maintain this action. This has already been held by this court upon the appeal wherein the demurrer to the complaint was overruled. The facts themselves have also been established in previous litigation which had not been determined when the complaint in this action was filed, but
The answer of the Investors’ Syndicate and John E. Tappen is identical with that of the coal company; except that it contains no prayer for relief whatsoever. It amounts to no more or less than an offer
In conclusion it seems proper to observe that, while tbis action has been held to have been properly brought as an independent suit, tbe relief sought, in view of tbe present state of tbe litigation between these parties concerning tbe subject-matter, characterizes tbis proceeding as being in reality an ancillary step for tbe protection of tbe fruits of tbe prior action in which tbe mortgage indebtedness to tbe Investors’ Snydicate has been invalidated for fraud.
The order appealed from is reversed and tbe cause remanded for further proceedings according to law.