64 P. 890 | Idaho | 1901
Lead Opinion
This action was commenced in the district court of Nez Perces county. The complaint was filed on the thirtieth day of August, 1900. On the tenth day of September thereafter a demurrer was filed, to wit: “The above-named defendants demur to the complaint of the plaintiff in this action, and specify as grounds of objection thereto that it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action.” On the twenty-fourth day of September, 1900, an order was made by the district court overruling the demurrer, in which order the judge states that “the defendants elect to stand on the pleadings as now made, and refuse to further plead.” On the ninth day of November, 1900, the default of defendants was entered, .and on the same day judgment was entered against the defendants for the sum of $1,003.67 and costs of suit. Thereafter an appeal was perfected to this court for review. In the transcript we find what is called a “Supplement,” which purports to show a foreclosure proceeding wherein the same parties were plaintiff and defendants as appear in this suit. Counsel for respondent files his motion to strike the supplement from the transcript, to wit: “Comes now the respondent, the First National Bank of Lewiston, Idaho, and moves the honorable the above-entitled court to strike from the transcript herein all
We will first dispose of the motion to strike what is termed the "Supplement” from the files. The record discloses the fact that Stewart S. Denning, Daniel Needham, and Ray D. Walker, attorneys of record for appellants, certify to the correctness of the papers purporting to be the proceedings in a former action tried in the district court of Nez Perces county, which papers constitute what is called the "Supplement” in the record in the case before us for review. It is not contended by appellants that the papers constituting the supplement were
The remaining question is, Was the demurrer to respondent’s-complaint in the lower court properly overruled?
“Complaint. The plaintiff complains and alleges: 1. That at and during all the period herein named the plaintiff was, and now is, a corporation organized, created, and existing under- and by virtue of the laws of the United States, with its principal place of business at Lewiston, Idaho. 2. That heretofore, in the above-entitled court, in a cause wherein plaintiff herein was plaintiff, and the defendants herein were defendants, which action was to foreclose a certain mortgage described in the-complaint therein, such proceedings were had that the defendants above named, and each thereof, were personally served with summons issued in such foreclosure case at the county of' Nez Perees and state of Idaho, and thereafter in such foreclosure case, the defendants having failed to appear or answer-to the complaint within the time specified, their default therefor was entered; that thereafter such proceedings were further-had that a judgment on such default was duly given and made on the proceedings as against the same C. C. Sampson and.
Appellants make five assignments of error, as follows: “(1) The court erred in sustaining the demurrer to the complaint; (2) the court erred in ordering the default of the-defendants entered; (3) the court erred in rendering a default judgment against the defendant C. 0. Sampson; (4) the court erred in rendering a default judgment against Minnie C. Sampson; (5) the court erred in rendering a default judgment against the defendants, C. C. Sampson and Minnie C. Sampson.”
It is shown by the complaint that appellants executed their mortgage to respondent; that the mortgage was foreclosed; that the property mortgaged was sold as provided by law; that at such sale the property did not sell for the amount due; that the sheriff of Nez Perces county made his return on the order of •sale, showing a deficiency. We think the complaint sufficiently states a cause of action against the defendants, and the demurrer was properly overruled. If the defendants, or either of them, had a defense to the action, it should have been by way of an answer. The judgment of the lower court is affirmed.
Rehearing
ON REHEARING.
The appellants have filed a petition for rehearing, in which it is insisted that the decision in this case lays down the rule that an action can be maintained upon the return of the sheriff for a deficiency in proceedings under a decree of mortgage foreclosure without judgment for such deficiency having been docketed as required by the statute. This court did not intend to so hold, and the decision in .this case does not so hold. The facts stated in the complaint, which is set forth in the original opinion herein, are sufficient, after judgment, to show that a judgment for the' deficiency remaining after sale of the mortgaged property was docketed, or at least enough to make that inference necessary from what is stated in the complaint. The complaint shows that the sheriff made