10 S.D. 191 | S.D. | 1897
This was an action to foreclose a real estate mortgage executed by the defendant to the plaintiff to secure the payment of a coupon note for $15,000. Judgment was entered for the plaintiff, and the defendant apppeals.
The respondent makes a preliminary objection to the consideration of this appeal by this court, for the reason that no assignment of errors, as required by rule 11 of this court, appears in the abstract. It is true that no formal assignment of
The note and mortgage were executed in January, 1892, and were by their terms made payable January, 1897, and they contained the following stipulation: ‘‘And, if any or either of said annexed coupon interest notes shall remain unpaid for ten days after maturity thereof, we expressly agree with the payee of this note that they or their assigns or other holder of this note may at its or their option, and without notice to the makers, declare the said principal sum, as well as any or either of said past-due coupons, as fully due and payable, as fully as if this note was payable on demand, and may proceed and collect the same, by foreclosure of the mortgage given to secure the same, either under the power of sale therein contained, or by suit or other proceedings in court or otherwise as they may elect.” Default having been made in the payment of the interest due July 6, 1894, the plaintiff, in pursuance of the terms of said stipulation elected to declare the whole sum due and payable, and proceeded to collect the same by an action at law in the district court of the state of Minnesota in which judgment was entered for plaintiff. In the action now before this court, the commencement of the action at law in the district court of Minne
The appellant contends that the stipulation heretofore given, by its terms, limits the plaintiff to one of two methods of procedure, and that, when it elected to proceed at law in the district court of Minnesota, it was bound by that election, and could not thereafter maintain this action to foreclose the mortgage in equity until, by the terms of the note and mortgage, they became due. It bases its contention upon the words in the stipulation “and may proceed and collect the same by foreclosure of the mortgage * * * or otherwise as they may elect.” The term “otherwise,” as construed by counsel, evidently refers to and contemplates an action at law. The appellant takes the position that “or,” as here used, means that, the proceedings at law being one of the proceedings authorized, the right to the other was thereby waived. We cannot agree with the learned counsel for the appellant in his contention. He evidently gives too little effect to the words ‘ ‘and may proceed and collect the same by foreclosure,” etc. The stipulation is not that he may proceed to commence an action either in equity to foreclose the mortgage, or an action at law upon the note. In our opinion, the stipulation has made no change in the ordinary mode of proceeding in cases where the note and mortgage have become due by their terms, and the plaintiff was authorized to proceed, either at law or in equity, in the manner prescribed by the provisions of the Code, until it succeeded in collecting the money due it. The only effect of the stipulation, in our view, was to make the note and mortgage due and payable at an earlier date than that fixed by their terms, and that in other respects the same proceedings are authorized as when the note and mortgage are by their terms due and payable. But, were we incorrect in this view, the foreclosure was clearly authorized in this case by another stipulation in the mortgage,
At the close of plaintiff’s evidence, the defendant moved the court to dismiss the action, upon the ground, among others, that it appears by the evidence that no execution against the property of the defendants, or either of them, had been returned by the proper officer, unsatisfied in whole or in part, prior to the commencement of this action. The court overruled the motion, and this ruling is assigned as error. The plaintiff introduced in evidence the record of the action at law in the district court of Minnesota, including an execution and return thereon, from which it appeared that judgment was entered on May 17, 1895, and an execution issued thereon, and the return filed December, 1895, though it bears date July 25, 1895. This action was commenced October 8, 1895, by the service of ' summons made about that time. The counsel for respondent meets the assignment with two propositions: (1) That the allegation in his complaint that the execution was issued, and duly returned unsatisfied either in whole or in part, is not denied by the answer. (2) If not so returned before this action was commenced, but was returned before any judgment was entered in this action, it would be sufficient, under the law,. and the delay in making such a return would only have the effect to suspend the foreclosure proceedings until such a return could be obtained, and consequently there was no error in the ruling of the court. The plaintiff alleged in the sixth paragraph of its complaint that the judgment in the action at law was entered on May 17, 1895, and then alleged that “there.after execution was duly issued, * * * and was duly returned wholly unsatisfied,” and that the same had not been paid. The defendant expressly admitted the allegations of