152 N.W. 700 | S.D. | 1915
Action in circuit court, Tripp county, to- foreclose a mortgage on certain real property known as the Sherman Hotel, in the town of Colome. The complaint contained the .usual and sufficient allegations of the execution and delivery of the mortgage, and default in its conditions- prior to the commencement of the action; also that the mortgaged premises were rented to tenants at a rental of $75 per month, and—
“that the value of the said mortgaged premises is probably insufficient to pay the amount of the mortgage indebtedness, besides accrued taxes and necessary insurance, besides costs of the action.”
The complaint contains the further allegation:
“That justice and -equity require that a receiver be appointed to take possession of said mortgaged property and collect all rents and profits arising therefrom during the pendency of this action”
The rents and profits “may be applied to the payment of any deficiency which may exist in the mortgage indebtedness after paying the principal, interest, costs, attorney’s fee, taxes, and indebtedness.”
Plaintiff verified the allegations of the complaint as “true of his own knowledge.” The. verified complaint was presented to the trial court, and, without notice to. defendants, the court forthwith made an order reciting:
“This court being satisfied that justice and equity require the appointment of a receiver to collect the rents and profits during the pendency of this, action”
■ — and appointing A. B. Hancock as receiver with authority to take .possession of the mortgaged premises, to collect the rents and profits during the pendency of this action, and out of the rents and profits to pay the taxes, insurance on the premises, all as covenanted in the mortgage, and to retain the balance from such rents until the further order of the court. It was. further ordered that the receiver execute a bond in the sum of $2,000, and take the oath- required by law, and that upon his qualification the defendants, and all persons claiming under them, refrain from interfering with the receiver or his. possession of the premises, and further directing the tenants, to- pay to the receiver rents accruing under the lease. This order was made on July 31, 1914, filed and entered; August 6, 1914, served on appellant August 12, 1914, and on the last-named date the receiver took .possession of the property. Defendant excepted to the order appointing the receiver, and alleges error therein for the reasons: First, that the complaint fails to state facts sufficient to entitle the plaintiff, to the appointmen of a receiver; second, that the court did not require plaintiff, to give a bond before issuing the order, etc.; third, that the order was made ex parte, without notice. Respondent amended the statement of facts in appellant’s brief by showing that on August 25, 1914, appellant served notice of a motion, returnable August 31st, to vacate the order appointing a receiver, for the reasons that: (1) Said order is contrary to law, and the court was without jurisdiction to make the same; (2) because the order was made before the commencement of the action, and therefore void; (3)
“That the probable value of the property set out in the complaint is not sufficient to pay the mortgage indebtedness, besides taxes, insurance, and costs.”
And the court found and determined that the order should be modified so as to allow the defendant Mart Coffman, to- collect $20 a month for the use of his furniture, and that the plaintiff should execute a bond in the sum of $500, as provided by section 229 of the Code of Civil Procedure, said bond to be executed within ten days from the date of the order, whereupon it was-—
“ordered that said order above mentioned be modified as herein-before mentioned, and the receiver heretofore appointed is directed to pay to the said Mart Coffman $20 of the proceeds received by him for rents, and said plaintiff is directed to file the abo-ve bond mentioned, within ten days fro-m this date. * * * Otherwise the order shall remain in full force, virtue, and effect.”
This order was dated and entered October 12, 1914, and at the time the motion was considered and decided appellant had answered the complaint in the action, in which answer defendant, among other things admitted default in the conditions of -the mortgage. It is alleged, and not denied, that plaintiff executed
Appellant contends, however, that the order appointing the receiver was erroneous, for two reasons: First, that it was made without notice; and, second, that the allgations of the verified complaint upon- which the order was made were insufficient to sustain the order, in that it was a conclusion, and not a statement of facts from which it was made to' appear that the mortgaged property was probably. insufficient to- discharge the mortgage debt. The allegation in the sworn complaint is:
“That the value of the said mortgaged premises is probably insufficient to pay the amount of mortgaged indebtedness, besides accrued taxes and necessary indebtedness, besides costs of the action.”
Such an allegation was held insufficient in Bank v. Stephens, 144 Cal. 659, 79 Pac. 379.
But, as the record before us, for the reasons hereinafter stated, precludes a reversal upon any of the grounds urged by appellant, we find it unnecessary to consider or decide the legal questions so ably presented in appellant’s brief. One of appellant’s assignments of error is “That the court did not require plaintiff to give a bond,” etc., as required by section 229, Code Civil Procedure. The original order as shown by the record only required that, “before entering upon the duties of said trust, he [the receiver] execute a bond * * * conditioned as required by law * * * in the penal sum of $2,000.” It is likewise unnecessary to determine in this case whether the appeal should have been from the original or amended order hereinbefore referred to.
But appellant’s motion to vacate the order appointing the receiver, among other things, was “because the property, is not ‘probably insufficient to pay the amount of the mortgage,’ but the s-aid property is ample security therefor, as is shown by the annexted affidavits in support of this motion, being Exhibits 1 to 27-”
Upon the hearing of this motion upon affidavits of both parties relating to the value of the property, the court, by its order of October 12th, above quoted, found as a fact that “the probable value of the mortgaged property is not sufficient to pay the mortgage indebtedness,” and directed the giving of a bond by plaintiff, as provided by section 229, Code Civil Procedure. That this bond was given is alleged by respondent, and not- denied by appellant.
“The objection that a receiver has -been appointed without notice is not tenable where the defendant, upon his motion to*442 discharge the receiver before an- appeal, has had a hearing which served all the purposes of a notice in the first instance.”
In Iroquois Furnace Co. v. Kimbark, 85 Ill. App. 399, upon a motion to vacate an order appointing a receiver, on the ground that the appointment was made ex parte and without notice to appellant, the court said:
“We are of opinion that, under the circumstances of this case, notice might and should have been given to appellant of the application for the order. But it is conclusively shown by the record that appellant has suffered.no prejudice by reason of lack of such notice; for upon a full hearing- participated in by appellant the court afterwards denied a motion to vacate the order of appointment. The order should not, -therefore, be reversed, and the court below put merely to the re-entering of an order upon notice which that court has already determined to be proper upon a full hearing. The error complained of is -an error shown to have been without prejudice, and to reverse upon that ground alone would be to require needless proceedings in the trial court.” Brown v. Luehrs, 79 Ill. 581; O'Kane v. West, etc., Store Co., 72 Ill. App. 299; Cook County Brick Co. v. Kachler, 83 Ill. App. 453; Elwood v. First Nat. Bank, supra; Werborn’s Admin’r v. Kahn, 93 Ala. 201, 9 South. 729.
Appellant’s notice of appeal, in- addition to an appeal from the order of July 31st, contains this recital :
“And this defendant being also aggrieved by the order of said court overruling the motion of the said defendant to vacate the aforesaid order, the said defendant Mart Coffman does hereby appeal * * * from the said order appointing a receiver, and from the order overruling the defendant’s motion to vacate the said order, and from the whole of both of said orders-.”
The order of the trial court is therefore affirmed.
