Low v. Fox, 56 Iowa 221

Low v. Fox

56 Iowa 221 | Iowa | 1881

Rothrock, J.

l, practice premVcóurt: assignment of errors. I. The judgment must be affirmed on the plaintiff’s appeal, because of the insufficiency and inexplicitness of the assignment of errors. The only at-. tempt at an assignment of errors found in the , , . „ record is as follows:

“1st. Assignment of errors are that the court should have sustained in full the motion for new trial, and should have set aside both verdicts.

“2d. The other errors assigned are set out at length in *223numbers two, three, four, five, six' and seven of grounds for new trial on pages 12 and 13 of record.”

It is scarcely necessary to say this assignment of errors is too general to meet the requirements of the statute, as interpreted by repeated decisions of this court.

„ fSmoCtü°4iis£y of record. II. The next inquiry is, did the court err in granting a new trial as to the verdict for the statutory penalty ? The Code, section 3327, provides that “whenever the amount due on any mortgage is paid off, the mortgagee, or those legally acting for him, must acknowledge satisfaction thereof in the margin of the record of the mortgage, or by execution of an instrument in writing referring to the mortgage, and duly acknowledged and recorded.. If he fails to do so within sixty days after being requested, he shall forfeit to the mortgagor the sum of twenty-five dollars.” It will b« observed that the liability for this penalty is against the mortgagee. E. II. Low was not the mortgagee. Time, he was • the assignee of the note secured by the mortgage, and it is undoubtedly correct that the assignment of the note operated as an assignment of the mortgage, so that he could enforce the mortgage for his benefit. But there being no written and recorded assignment of the mortgage to him his entry of satisfaction would have been improper, as tending to confusion in the record title to the property, by showing a release by a stranger to the instrument. "Whether under the statute the assignee under a recorded assignment Of a mortgage incurs the penalty by refusing to enter satisfaction we need not determine. "We think that under the facts of the case the court was correct in granting a new trial as to the verdict under consideration, because under the undisputed facts the defendant could not recover.

3. practice : granting new tna1' It appears that a judgment had been formally entered on the verdict before the new trial was granted. It is urged ^iat the granting of the new trial was erroneous, without setting aside the judgment. ^This objection goes rather to the form of the record than to *224the substance of the casé. The granting of a new trial ex vi termini was a vacation of the judgment entry. '

.Our conclusion is that upon both appeals the ruling of the court below' should be .

Affirmed.