51 P. 1029 | Idaho | 1898
— The defendants in this ease filed a general demurrer to the complaint, which was sustained by the district court. From the judgment dismissing the action the plaintiff appeals. The facts as they appear in the complaint are as follows : Hyrum S. Wooley executed his promissory note to plaintiff for the sum of $4,600, on the twenty-seventh day of February, 1894, and on the same day said Wooley and his wife executed a mortgage to the plaintiff on eight lots or parcels of land, to secure the payment of said note at its maturity, August 27, 1894. The mortgage covered some community property, the homestead, and one parcel of separate property of the wife. December 18, 1894, the plaintiff commenced an action in the district court of the fifth district, in and for Bear Lake county,
The only question in this ease that we are called on to decide is the correctness of the lower court in sustaining the demurrer to the complaint. It will be seen that the complaint does not set forth in haec verla the certificate of acknowledgment to the said mortgage. We are unable to say from the record before us whether the said certificate absolutely failed to state whether the officer informed Mrs. Wooley of the contents of said instrument, or whether the allegation in the complaint that it did not show that the officer informed her of the contents of the instrument while her husband was absent is an actual fact, or is the
There is no allegation of fraud ¿gainst the defendants. The suit first brought was in equity. This is not an action brought by bill of review to obtain a review of a judgment obtained at law by fraud, or through mistake, accident or surprise. The evident purpose of this action is to obtain an additional decree foreclosing said mortgage as to two parcels of land after It had been foreclosed as to several others. Litigation should not be interminable, but judgments must be'treated as final, as a general rule. To obtain relief in this case, the plaintiff should have shown that in neither of the former suits mentioned in this complaint is there error apparent of record justifying a reversal. He had not done so. His statements show that a wrong has been done him. They do not show that he is not guilty of laches in protecting his rights, but a fair inference from the allegations of the complaint is that he failed to obtain full relief by reason of an erroneous judgment in one of two cases from which he failed to appeal. In tills case he asks a foreclosure of a mortgage in parcels, and asks the court to reform an instrument, by changing its terms so as to make it conform to the truth, and refuses to bring the instrument into court so that the court can see the defect, and see how to reform it by changing its terms so as to make it speak the truth. This may be correct practice, but we doubt it. Having sold a portion of the mortgaged property under the decree of foreclosure, we do not see how the cause could be opened, the former decree annulled, and the parties placed in statu quo.
To obtain relief by a bill of review from a judgment rendered in an equitable action foreclosing a mortgage, the plaintiff must, to state a cause of action, affirmatively show in his complaint that such judgment was the result of fraud, accident or mistake, which he could not, by due diligence, protect himself against in the original action. Such showing is not made here, and we think the demurrer was properly sustained. (See Boston v. Haynes, 33 Cal. 31; Mastick v. Thorp, 29 Cal. 445; Riddle v. Baker, 13 Cal. 295.)