188 P. 940 | Mont. | 1920
delivered the opinion of the court.
After the former appeal in this ease was determined (56 Mont. 82, 181 Pac. 332), issues were made up between the parties by the answer of the defendant Mabel Himmelbauer to the amended complaint and plaintiff’s reply thereto. The statement of the material allegations of the complaint made in the opinion delivered on that appeal is sufficient for the purposes of this appeal and it need not be repeated here.
Defendant’s answer contains seven separate defenses, only one of which, with the plaintiff’s reply to it, it is necessary to notice. The answer is the following: “(1) That said note described in paragraph 2 of plaintiff’s said complaint was not at the time of the institution of the above-entitled action due either in whole or in part as to this answering defendant; (2) that this answering defendant was not a party to the chattel mortgage referred to in paragraphs 4 and 5 of plaintiff’s amended complaint and was not bound by the provisions of the clause quoted in paragraph 5 of said amended complaint under which plaintiff alleges it declared said note due and payable on the seventh day of March, 1918; (3) that plaintiff’s suit herein was and is as to this answering defendant prematurely brought, and the same should be abated.”
The reply joins issue upon all of these allegations, except that it admits: 1 ‘ That the answering defendant wias not a party who signed the chattel mortgage.”
Upon the filing of the reply the defendant Mabel Himmelbauer moved the court for judgment on the pleadings. The ground of this motion was that it appeared by the admission in the reply that this defendant had not signed the chattel mort
One assignment is that the court erred in denying the motion
On the former appeal we held that, under the rule declared by section 5031 of the Revised Codes, the note and mortgage must be considered together, and that, so considering them, the defendant was bound by the stipulation in the mortgage permitting the plaintiff to accelerate the payment of the note upon
The defendant denies that she signed the mortgage. This is
The order is affirmed.
Affirmed.