26 S.D. 371 | S.D. | 1910
This case is before us on rehearing. The former opinion of the court will be found in 23 S. D. 442, 122 N. W. 416, where the case is fully stated.
Only one proposition requires consideration on this rehearing. The issue as to the execution and -delivery of the notes and mortgage sought to be foreclosed in this action was fully litigated and decided as to the defendant Hunter in the former action of Hunter v. Kammann, as is conclusively shown -by the judgment and record in that action. The ground of our former decision awarding a new trial to both defendants 'was 'that, while the pleadings in the former action disclose a plea of the statute of limita
One other question remains for consideration. The record discloses that the mortgage sought to- be foreclosed was duly recorded, and contains the rrsual power of sale on default of payment; that Kammann commenced foreclosure by advertisement, but was compelled to desist from that method -of enforcing his remedy by an injunctional- order issued under the provisions of section 636, Code Civ. P'roc., directing that all further proceedings be had in the circuit court.. This action is therefore but a continuation of -the foreclosure proceeding begun by advertisement pursuant to the power contained in the mortgage. The question arises as to what “defenses” to the foreclosure proceedings are available to a defendant, under this statute, when foreclosure proceedings are thus transferred to the -circuit court. The power
It is contended by respondent that the evidence is sufficient to sustain the finding of the trial court as to delivery of the notes and mortgage as against the' defendant Barton. The abstract
The former decision of this court should stand so far as it' awards a new trial to Barton, but should be modified to the extent of denying a new trial as to Hunter.