12 Iowa 303 | Iowa | 1861
Lead Opinion
The controversy, as presented in the court below ana in this, is between the complainant and the mortgagor Haun. And the first question made is, whether there was error in entering the decree pro confesso and refusing respondent leave to answer, under the circumstances detailed in the record. '
We are clearly of the opinion that sufficient excuse was shown for not answering within the twenty days required by the rule entered at the September Term, 1858. And we are equally clear, at the same time, that there was no error in the decree in this respect, nor in the refusal to give further time for answering. In the first place, taking all the affidavits for and against the excuse shown and the leave asked, and there is certainly no satisfactory cause shown for not answering after the expiration of the twenty days, and before the first day of the next term in April, in Cedar county. By thus answering, respondents could have saved their default, and this it was their duty to do. Where a party is ruled to answer by a day named, and for his noncompliance has a good and valid excuse, he is not thereby
In the second place, we are not satisfied that there was any abuse of the discretion lodged with the court below, in entering the default for not answering under the short rule, taken at the April Term, 1859, or at least such abuse as to justify our interference.
Then again, and finally on this subject, respondents, in their motions for time to answer, fail to make any sufficient averment of merits, or any showing to lead to the conclusion that substantial justice required such continuance. They moved for time to answer beyond the term; then to answer during rhe term, and then after the default was entered to set it aside, and it was not until after the default was entered and the decree rendered that there was an attempt at showing merits. Still no answer accompanied the affidavit, nor any sufficient excuse for not presenting the same. Upon the whole, addressed as such applications are to the sound discretion of the chancellor, and in view of the rule, that relief should never be granted where the default is the consequence of the party’s own neglect, and the further one, that an answer should have accompanied the application, we conclude that the' default was properly entered. (Harrison v. Kramer, 3 Iowa 543.)
II. It is next claimed that there is an inconsistency in the object and purpose of the original and amended bill. So much so, that it was improper to grant any relief thereon to complainant. The original bill asked a foreclosure of the mortgage, making no reference to the proceedings under the sheriff’s sale of March 6th, 1858. The amended bill set forth these proceedings : the assignment by Millilcen and his agreement to convey; the mistake in the description; the claim by respondents of the invalidity of said proceedings; and then prays that the title may be quieted, the mistake correct
To this form of the bill we are unable to see any just ground of objection. In all its parts it refers to the same mortgage. One part of the prayer is for a foreclosure and the other for a specific performance and to correct a mistake. The relief sought in either case, is of an equitable nature. It is not to be denied that it would have been better for the pleader to have set out the foreclosure proceedings by the sheriff in his original bill, following this up with averments showing his title, or the agreement with Milliken, the alleged mistake; the claim of title by the other respondents, praying the correction, the quieting of his tittle, and then the alternative for a foreclosure, if said proceedings by the sheriff were invalid. But while this would have been the better course, the same end is substantially attained in the course pursued. If treated • as a bill for the specific performance and reforming of the contract between complainant and Milliken, improper parties, as respondents, were brought in, this might become material in taxing costs. It must be borne in mind, however, that the bill charges, that all the respondents, naming them, claim or pretend to have some interest in said property, or in some part of it, and the prayer is, that complainant’s title may be quieted. To this charge there is no response. The bill is taken as confessed and true in this respect as in all others. In this view therefore they were properly made parties and liable for costs.
As against Milliken, the court clearly had jurisdiction, treating the bill simply as one for specific performance. As against Iíaun and all the other respondents, the jurisdiction was alike clear, treating it as a foreclosure proceeding.
III. It is next insisted that the sale by the sheriff was established by the court, without any allegation or proof of its regularity or validity. If the allegations in this respect are sufficient, the proof is immaterial, for the bill being confessed, proof was not necessary. Without reciting this part of the bill, in detail, we unite in the opinion, that guided by the principles recognized in Harrison v. Kramer, supra, it contains all that is essential or material to form a predicate for the decree.
IV. The last and most important point presented for our consideration is, that the sale by the sheriff was invalid and could give no right to complainant, or Milliken under whom he claims, for the reason that the law authorizing it was repealed before said sale was made. And while it is pressed with much zeal and a corresponding ability, to our minds it is of ea.sy disposition. To understand the very point made in argument, reference to the statutes relied upon becomes important.
The sale by the sheriff was made under §§ 2071 to 2083, chapter 118 of the Code of 1851, known as the “ foreclosure
The general principle relied upon, independent of some statutory rule, is not controverted, that when a statute is repealed it must be considered as if it never existed, except with reference to such parts as are saved by the repealing statute. And equally well settled is the doctrine, that though a party may have instituted his suit, and the same be pending at the time of the repeal, the jurisdiction is gone, without some saving clause. In the case before us, however, the act of 1858 provided that it should take effect from and after its publication in certain newspapers, under § 26 of article 3 of the Constitution. It is shown by the proper certificate of the Secretary of State that the last publication was made on the 27th of February, 1858. .The Code of 1851, § 21, provides, that “ all acts which are to take effect by publication in the newspapers shall be published in two papers, and take effect on the twentieth day after the date of the last publication.”
The word “ hereafter,” as used in the act of February 25th, 1858, has reference to the date of the taking effect of the act, and not the date of its passage or approval. Charless & Blow v. Lamberson, 1 Iowa 435 ; Bennett v. Bernard, 6 Iowa 82. This being so, it could not operate upon this sale, or impair its validity, (for by § 21, just quoted, it did not
Having thus disposed of all the questions made by counsel, we are brought to the conclusion that the decree below must bo
Affirmed.
Dissenting Opinion
dissenting.- — Whilst I concur in the ruling of a majority of the court on most of the questions passed upon in this case, I nevertheless dissent from the conclusion reached, that the record taken as a whole presents no error.
'There is to my mind a vital question, standing out in prominent relief on the face of the record, which not only justifies but demands a reversal, instead of an affirmance, of the judgment below. That question relates to the power of
Now, whilst the provisions of chapter 118 of the Code of 1851 were not inconsistent with the terms and provisions of the old constitution, and that the power therein conferred upon the sheriff might be lawfully exercised, yet I am firm in the conviction that so much of that chapter as relates to summary foreclosures by the sheriff, instantly fell to the ground and become wholly inoperative upon the taking effect of the new constitution under the proclamation of the Governor, published in Sept., 1857. I refer to the last clause of the ninth section of the bill of rights, which declares, “ That no person shall be deprived of life, liberty or property without due process of lawr.” This right was not
Our constitution was framed and adopted with a full knowledge of the judicial construction given to these words, and we must presume that it was intended that they should be used in the sense, and to have the same legal effect assigned them under the federal constitution. Like the other absolute rights enumerated in the first article of the constitution, the passage of no law of the legislature was necessary in order to give it effect. It was self-executing. The 1st section of the schedule provides that the constitution shall be the supreme law of the State, and any law inconsistent therewith shall be void. The 2d section reads, “ all laws now in force, and not inconsistent with this constitution, shall remain in force until they shall expire or be repealed.” As the law under which the sheriff’s foreclosure was made, was inconsistent with the provision of the constitution referred to, it ceased upon the taking effect of the constitution, to have any legal operation. It follows therefore, that the sale aforesaid was irregular and void; nor can it be legitimately claimed, that this change which the new constitution has made in the law of foreclosure, must be limited to future debts or liabilities, otherwise it will have the effect to impair the obligation of contracts.
We are not insensible of the difficulties which the courts of this country have had in establishing a general rule, which
Chancellor Kent’s rule upon this subject was, “ that the constitution shall not be deemed violated so long as the contracts are submitted to the ordinary and regular course of justice, and the existing remedies are preserved in substance.” Applying this rule to the case in hand, we find that one of two concurrent but distinct methods of foreclosing mortgages is taken away, leaving the other unimpaired and affording a full and complete remedy.
For the above reason I conclude that the power to make a sheriff’s foreclosure of the mortgage was wanting. The affirmance of the judgment below, in effect, asserts the existence of this power, and that is was lawfully exercised, to which I can not assent.