Vogel v. Walker

3 Utah 227 | Utah | 1882

Twiss, J.:

Tbe plaintiff certainly bad no claim against the defendants, unless there was something due to and owing her by reason of and under tbe deficiency judgment obtained by her against James Crossley. If that was paid, the mortgage debt was no longer in existence, and she not only had no claim against either of the Crossleys, but no pretense of claim against the defendants. Without expressing any opinion as to the sufficiency of the allegations of the issuance and return of the execution issued upon that judgment, but considering as admitted that the execution was in due form of law; that it was placed in the hands of a proper officer for service; that he made diligent search for property of James Crossley and found none; that the officer, indue form, made return thereon of such facts, and returned the execution to the clerk in December, 1880; and that James Crossby at the time this action was commenced, March 14, 1881, was insolvent — it by no means follows, as a legal sequence, that on the last-named date the judgment was in force, or that by virtue thereof or otherwise the judgment debtor was indebted to or owing the plaintiff any sum whatever. The complaint contains no allegation of any existing indebtedness to the plaintiff from either of the Crossleys at the time the action was commenced.

In Frisch v. Calver, 21 Cal. 71, the court say: “It is necessary ,in an action on a promissory note to allege that the note has not been paid.” Hershfield et al. v. Aiken et al., 3 Mont. 442, was an action to foreclose a mortgage given to secure the payment of two promissory notes. One of the questions involved in the case was, “Does the complaint state facts sufficient to constitute a cause of action ? ” Upon this point the court, after citing Frisch v. Calver, supra; Davanay v. Eggenhoff, 43 Cal. 395 ; Doyle v. Phoenix Ins. Co., 44 Id. 264; and Roberts v. Treadwell, 50 Id. 520, say: “Under these authorities we must hold that the complaint is defective in not alleging that the notes sued on still remain unpaid, and that no breach of the contract is alleged.”

The principle of law and rule of pleading stated in these cases are undoubtedly correct, and I can conceive of no reason for an exception to the rule excepting- the plaintiff from the necessity of alleging that the deficiency judgment was not paid. That it was not paid should have been so clearly and concisely stated that reference to extraneous allegations in aid of such statements would be unnecessary and redundant.;

There being no allegation of existing indebtedness on the. part of James Crossley to the plaintiff by reason of or upon the deficiency judgment, the complaint contains no cause of action against the defendants, and therefore it is unnecessary to consider any of the other questions presented by the briefs and arguments of counsel.

The demurrer to the complaint was rightfully sustained, and the judgment of the district court is affirmed.

Hunter, C. J., concurred. 1 Emerson, J., dissented.