Prior to September 9, 1920, appellant was indebted to some of the respondents, and on that day signed a promissory note for $5,467.55, payable on demand to W. S. Huyette, trustee, for such indebtedness, and secured the same by a chattel mortgage. On September 22d thereafter, the trustee began a foreclosure of said mortgage, under the provisions of C. S., see. 6380 et seq., and the sheriff sold all of the property covered by the mortgage on September 29th, making return which showed that after crediting the amount for which the property sold, there remained an unpaid balance in excess of $4,000 upon this note. On the day of the foreclosure sale, appellant commenced this action' against said creditors, and joined the trustee, and also the sheriff who had conducted the sale.
It is not clear from the complaint what relief is sought in this action. Among other things, the complaint alleges that appellant and Minnie Gropp have been husband and wife for more than ten years, and were at the time residents of Nez Perce County, Idaho, engaged in farming; that respondents, except the trustee and sheriff, were his creditors; that said trustee and the sheriff were at the instance and upon the order and request of such creditors maintaining the proceedings to foreclose a pretended chattel mortgage; and then pleads haeo verla the notice of sheriff’s sale, “affidavit for mortgage foreclosure by notice and sale,’’ and demand for the possession of the personal property de
*687 “Wherefore, the plaintiff demands judgment against the defendants in the sum of twenty thousand dollars and for all his costs and disbursements also that said note and mortgage were never delivered, that fraud was practiced upon the plaintiff, and that the said foreclosure proceedings are null and void and for all relief to which plaintiff is entitled against the said defendants and against each of them.”
The answer specifically denies most of the averments of the complaint.
The case was tried upon these pleadings and the court found that appellant was a resident of the state of Washington ; that he had executed the note and mortgage in question; that such mortgage had been foreclosed by the sheriff; that such foreclosure proceedings were valid and regular; and denied appellant any affirmative relief and gave judgment against him for costs. From this judgment he appeals.
Ancillary to these proceedings, appellant, by a verified motion in the trial court, sought to enjoin respondents from prosecuting an independent action which they had commenced to recover a judgment on the deficiency remaining after the foreclosure proceedings, upon the ground that such action was to:
“Annoy, distress and harass plaintiff and to make him pay for the expenses of a distressing litigation and defend a multitude of actions and to pauperize him, so that he can neither prosecute the instant action nor defend the said action commenced as aforesaid, etc.”
The trial court denied any injunctive relief.
Appellant then filed in this court and cause an instrument which he entitles “Original Motion in the Case on Appeal.” This is a pleading in the form of an affidavit, wherein most of the matter contained in the complaint is reiterated and the further statement is made that since the commencement of this action certain of the respondents have commenced two other actions, and asks this court to issue a writ of prohibition against the judge of the court below, prohibiting him from proceeding further in the de
“To prevent and stop a multiplicity of actions on the same and identical subject matter of litigation that is involved in the above-entitled action .... that if the hereinafter described subsequent actions are permitted to proceed to trial and judgment, this affiant, because of his financial inability to properly and efficiently defend them, will be denied justice and equity, and if this affiant was financially able to defend said actions and properly protect his rights, the said subsequent actions, involving the same subject matter as does the instant action, would, in all probability, result in conflicting judgments, and cause a tangle of judicial procedure that the courts could never untangle or set right, etc.”
The record in this appeal consists of the complaint, answer, findings of fact, conclusions of law and judgment of the court below, which are the files that usually constitute the judgment-roll in an action of this kind, and also certain minute entries of orders made by the trial court, and a large number of disconnected files termed “affidavits,” “notices” and “motions,” including the one designated as “Original Motion in the Case on Appeal.” No statement, bill of exceptions or stenographer’s transcript is to be found in this record.
The first four assignments relate to alleged errors of the court in upholding the foreclosure proceedings, and the fifth to the court’s refusal to abate by a restraining order the subsequent actions to recover a deficiency judgment.
Much of the matter alleged in the complaint, and everything set forth in the instrument entitled “Original Motion in the Case on Appeal” is irrelevant to any issue presented by this record on appeal. An inspection of the application to this court for a writ of prohibition discloses that it does not set up facts which would give this court jurisdiction to issue the writ prayed for. It is elementary that an appellate court may not in this summary manner, by a resort to the extraordinary remedy of prohibition, interfere
Passing to a consideration of the questions properly presented by this record on appeal: Eespondents move to dismiss the appeal upon the grounds: (1) that the action having been brought to contest the right of a mortgagee to foreclose a chattel mortgage under C. S., sec. 6385, and it appearing that a sale had been had before the complaint was filed, the question sought to be raised in this action is res judicata; (2) that the court is without jurisdiction to hear the cause because of the insufficiency of the record; (3) that the clerk’s certificate is insufficient; (4) that there is not sufficient record to enable the court to consider the alleged errors, there being no stenographer’s transcript, bill of exceptions or judgment-roll.
This motion to dismiss should be denied. While the complaint is somewhat ambiguous and uncertain as to the relief sought, it alleges sufficient facts relative to the foreclosure proceedings, if such allegations were sustained by the evidence, to constitute a cause of action. Nor do we think that
An appeal should not be dismissed because of the failure of the clerk to certify that the judgment-roll is before this court, if the record shows that the files which ordinarily constitute the judgment-roll are before the court, and such record is sufficient to present any question sought to be reviewed. Furthermore, in case at bar, there is a showing that the complaint, answer, various motions, findings, conclusions and judgment of the court below are before us, and if these are sufficient to present any question upon which appellant relies, his appeal should not be dismissed.
It is true that most of the errors assigned by appellant are such as cannot be considered by reason of the state of the record. This court frequently held, under the old appellate procedure, that where there is no statement or bill of exceptions, and since 1911, under the new procedure, where there is no stenographer’s transcript, which takes the place of a bill of exceptions when properly settled, the record will only be examined for fundamental error, and if in any view of the pleadings the judgment below can be up-' held, it will be affirmed by this court. (Hyde v. Harkness, 1 Ida. 638; Williams v. Boise Basin Mining etc. Co., 11 Ida. 233, 81 Pac. 646; Stoddard v. Fox, 15 Ida. 704, 99 Pac. 122; Wells v. Culp, 30 Ida. 438, 166 Pac. 218; Bergh v. Pennington, 33 Ida. 726, 198 Pac. 158.)
Appellant’s cause of action, as appears from the complaint and prayer for relief, the material averments of which were denied by the answer, is for a money judgment, for loss occasioned him by reason of the wrongful seizure and sale of his property under the foreclosure proceedings, and further, that such foreclosure proceedings were void. This is in the nature of a collateral attack, and in the absence of' any proof in support of these averments, and where the