9 Utah 309 | Utah | 1893
In the complaint filed in this cause the plaintiff described, a promissory note payable to him made by the defendant, Caleb R. Hank, for 14,592,25, alleged non-payment, and •pfayed judgment for the amont due; and, for a second cause of action he set out the same note and a mortgage executed by Caleb R. Hank and America L. Hank, on real estate to secure it, and alleged a breach, and the usual prayer of foreclosure, “and for other and further relief, without expressly asking for a judgment for any deficiency in case the mortgaged property should not bring enough to satisfy the decree. It appears from the record that no
It further appears from the record that on the same day the court ordered the sheriff of Weber county to sell the property described in the mortgage and decree, and that he sold the same in pursuance thereof, on April 28, 1892, for $2,702.32 less than the amount mentioned in the decree- and interest and costs; that the same was- shown by the-sheriff's return made on the same day; and that on the-same day an execution was issued commanding the sheriff' to make such deficiency out of any property of the defendant subject to execution; and that this execution was levied’ on such property. This execution recited that a deficiency-judgment had been entered on the same day of $2,702.32,. with accruing interest and costs, but no such judgment or any judgment authorizing the execution appears in the
The legislature has declared that judgments and .orders of the district court may be entered in term time or vacation. 2 Comp. Laws Utah 1888, § 3013. In view of this provision, we hold that the district court may enter a judgment, decree, or order when the court is not in session if the submission was made in open court, as in this case. Section 3460, Comp. Laws, did prescribe the mode of procedure in cases of the class under consideration. It is as .follows, so far as necessary to quote it: “There can be ■but one. action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with, the provisions of this chapter. In such action, the court .may by its judgment direct a sale of the incumbered prop
This section specifies the remedy for the collection of a debt secured by a mortgage against the person liable to pay it. First, it declares that there shall be but one action for its recovery, and that such action must be in accordance with the section; second, that the judgment must direct the sale of the incumbered property, or so much as necessary; third, when the return of the officer shows a deficiency, that the clerk must docket a judgment for it against the defendant personally liable, which then becomes a lien on the real estate of such judgment debtor, as in other cases, on which execution may issue. If the complaint contains the ordinary prayer of foreclosure, this is the only method, It is immaterial whether the complaint contains a prayer for a deficiency judgment. Such a judgment cannot be rendered or docketed until the officer makes his report showing such deficiency. Until such report the amount of the deficiency cannot be known. The amount of money due must be found in the decree, and the defendant personally liable to pay it must be ascertained; and the officer or person making the sale must specify in his return the amount of the deficiency, if any; and the clerk must docket the judgment for the amount, and then it has the effect of other judgments. The fact that the decree was upon a default makes no difference. The portion of the decree quoted above and set aside was immaterial, except so much of it as found the personal
Some of the cases to 'which we have been referred, if followed, would incumber this plain and simple method of procedure marked out by the statute with old modes and requisites, that can serve no useful purpose, and which the statute was designed to avoid. But the effect of the order appealed from was to strike out the portion of the decree that found and decreed that the defendant Caleb B. Hank was personally liable to pay the amount found in the decree. His personal liability was alleged in the complaint, and was a material allegation, and the defendant, by his default, admitted it. For the reason that the effect of the order appealed from was to strike out of the decree this material, finding of the personal liability of the défendant Caleb B. Hank, it must be held erroneous. The other portion stricken was immaterial, and the striking of it out was not reversible error.
If the deficiency has not been paid or settled, the plaintiff's right to a deficiency judgment still exists, and it will be the duty of the clerk of the district .court in that case to docket it, and to issue execution thereon if demanded by the plaintiff. We do not regard the case of Brereton v. Miller, 7 Utah, 426, 27 Pac. Rep. 81, referred to by counsel on both sides, as analogous to the one in hand. It became necessary in that case to adjust equities between the defendants, and, in doing so, to subject the property of the defendant who owed the debt, if any could be found subject to execution, to the payment of the decree, before resorting to the property described in the mortgage fore