Hawke v. Banning, 3 Minn. 67

Hawke v. Banning

3 Minn. 67 | Minn. | 1859

By the Court

— Flandrau, J.

This action was brought to foreclose a mortgage. The complaint shows that the Defend*70ant, Hawke, executed and delivered to tbe Plaintiff, Banning, a bond and mortgage on the Winslow House, in St. Paul, to secure tbe payment of fifteen thousand dollars; then alleges default in tbe payment, and contains tbe following allegation, to show tbe interest of tbe Plaintiff, Bucknell, to wit: “ And tbe said William L. Banning bolds tbe said mortgage and obligation in bis name for tbe joint use and benefit of tbe said Plaintiffs.” Judgment was allowed to- go against tbe Defendants by default, and tbe damages were assessed in pursuance of tbe stipulations in tbe bond, at tbe principal sum, with interest at tbe increased rate of five per cent, per month after default. Tbe Defendants bring a Writ of Error, alleging as error, that tbe allegation in tbe complaint intended to connect tbe Plaintiff Bucknell, with Banning, as a party in interest, is insufficient, and that tbe allowance of tbe increased rate of interest after maturity and default of payment, was erroneous.

The allegation of joint ownership is not very artistic, or full, yet it is quite clear that tbe pleader intended to say, that al-. though tbe bond and mortgage are given to Banning in bis name, yet they are tbe joint property of tbe two Plaintiffs. To say that one bolds a piece of property in bis own name, but for tbe “joint use and benefit ” of himself and another, is such an allegation of interest or property in such other, in tbe article held, as to make him a necessary party Plaintiff in an action to recover tbe same. What tbe particular extent or nature of tbe interest is does not appear, but that can be of no moment to tbe Defendants, so that tbe action is prosecuted in tbe name of all tbe parties who are interested; that he has a right to insist upon, but bow tbe recovery shall be shared among themselves is more their affair than bis. Perhaps if be bad appeared and insisted upon it, tbe Plaintiff would have been compelled on motion, to have made tbe allegation more specific and certain, but after suffering a default and allowing judgment to pass against him, and especially when tbe error complained of could in no way change tbe amount of tbe recovery, we are disinclined to stretch a point to reverse a judgment in all other respects regular.

Tbe question of tbe error in assessing tbe damages at tbe in*71creased rate of interest stipulated in the bond, does not differ in principle from those cases in which we have refused to review such an assessment when made by the Clerk on a default. The Judge has, it is true, signed the decree by which this excessive interest is awarded, but the record does not show any fact beyond those usually attending a default. There is a statement of the amount of principal and interest evidently drawn by the Plaintiffs’ counsel, as it is part of his bill of costs, or statement for judgment, to which the’ amount awarded by the decree exactly corresponds. The usual practice is for the Attorney to prepare his papers, and in such cases where the amount of damages depends upon computation only, the Judge signs without examination. Of course the party who takes an order or decree under such circumstances does so at his peril, and must see to it that he does not include anything that he is not strictly entitled to, and not depend upon the mere signature of the Judge to relieve himself from any responsibility. We do not think that in such cases the mere formal name of the Judge being appended to the decree makes it any more his actual decision than if the same duty had been performed by the Olerk, had he possessed the power. In both cases it is constructively the act of the Court, as all judgments are in the first instance “ entered upon the direction of a single Judge.” Statutes, Few Ed. y>. 566, Sec. Tl. But for the purpose of review directly by this Court, when the Judge had not actually passed upon the point, the error must be of such character that the record will not support a judgment at all, or in other words would not be aided by verdict, as was the case in Karns vs. Kunkle, decided by this Court. The principle decided in the case of Babcock and Hollinshead vs. Sanborn & French, is, that this Court will not review a question of damages which has been allowed to go by default in the Court below, until that Court has been called upon to act in reference to it. We do not think that this case differs in principle from that. The District Court has ample power on motion, to correct such errors, and resort must be had to that Court in the first instance. The decision upon such an application may or may not then be the subject of review according to the circumstances of each case.

*72The judgment is affirmed, and the case remanded to the District Court.

Chief Justice Emmett dissents from so much of the decision as refuses to review the question of damages.