Farmers & Merchants Bank v. Holliday

The opinion of the Court was delivered by Mr. Justice Fraser. The appellant thus states its case: “An action was brought to foreclose a real estate mortgage of lands situate in Marion and Dillon counties. Certain creditors of the mortgagor were made parties, including appellant and respondents herein. The appellant and certain of its codefendants obtained judgment against the mortgagor in Marion county, on Juné 2, 1913, and, so far as the Marion county property is concerned, no priority is claimed by appellant, for all of the judgments involved herein were docketed on the same date in Marion county, but on the same date, June 2, 1913, the appellant herein obtained a transcript of its judgment in Marion county and filed the same for record in Dillon county with the deputy clerk of Court, who marked the same ‘filed’ at about 9 o’clock p. m. of said day, but it was not entered on the abstract of judgments nor indexed until the following day, June '3, 1913. The other parties interested herein had transcripts of their judgments in Marion county filed, docketed, and indexed in Dillon county on June 3, 1913. The *118 master held that appellant was not entitled to priority by reason of the fact that its transcript of judgment was filed in Dillon county the day before the other transcripts were filed there. The mortgage debt was paid out of the proceeds of the sale of the mortgaged premises. The master in his report divided the surplus left, after having paid the mortgage debt, into two- parts, allowing appellant and the other judgment creditors who had filed transcripts of judgments also in Dillon county to participate equally in- such surplus in Dillon county, and all of the judgment creditors in Marion county to participate in the surplus derived from sale of property there, after payment of the mortgage. The Circuit Court affirmed the master’s report, and now the appeal to this Court upon exceptions taken.” 1 1. The first exception complains of error in allowing plaintiff’s attorney a fee of $500. The record does not show that this was error. The mere fact that the judgment of foreclosure was consented to does not show it. Sometimes much work and considerable skill is required to- secure a consent decree. This exception is overruled. 2. The appellant states his second question as follows r “His Honor erred, it is respectfully submitted, in affirming the report of the Judge of probate as to the method of distribution of the surplus in his hands among plaintiff and defendants. He should have held: ‘(a) That the filing of the transcript of the judgment of the Peoples Bank against J. G. Holliday in the office of the clerk of Court for Dillon county on the evening of June 2, 1913, and the entry thereof on the judgment book as of June 2, 1913, on June 3, 1913, created a lien on the Dillon property in favor of the Peoples. Bank superior to the lien of the judgments of other creditors who filed their transcripts and had same entered in the office of the clerk of Court on June 3, 1913.’ ” There are two sections of the Code of Civil Procedure that are involved in this case. Section 341, that the tran *119 script when so docketed “shall have the same force and effect as a judgment of that Court.” Section 348 provides that the transcript, “when so filed, shall constitute a lien on the real property of the judgment debtor in that county.” Appellant claims that, while the general effect dates from filing, yet the specific effect, to wit, the creation of a lien on land, dates from the filing. Appellant claims that the statute is clear, and whatever the Court may think of the justice of allowing its judgment filed on the 2d of June to take precedence, and the whole surplus of the Dillon real estate, still the law is plain, and the only way to escape it is by judicial legislation. The appellant stands on the letter of the statute, and by that letter its priority is slain. The last clause of subdivision 1 of section 348 is: “Provided, further, That all such verdicts and orders rendered and issued at the same term of Court shall have no priority one over another, notwithstanding they may be rendered and issued on different days of said Court.” The judgments were obtained in Marion county on the 2d of June. The transcripts were issued on the 2d of June. One was sent by hand, and the messenger called the deputy clerk to the office after hours to have it filed. The other was sent by mail and was filed on the 3d of June. Both were docketed on the 3d of June, but the one had no priority over the other by the letter of the statute. This exception is overruled. 3. The third question is: “(b) That the Judge of probate erred in finding and reporting that there should be a division of the surplus into two funds, one from the Dillon property and one from the Marion property, and in reporting that the fund applicable to each county should be applied towards the discharge of the judgments docketed in that county. It is respectfully submitted that the report of the Judge of probate should have been overruled in this particular, and that the Circuit *120 Judge should have held that the holders of the judgments docketed in Dillon county had, as to the Marion county property, rights equal in all respects to those of the holders of the judgments not docketed in Dillon county, and that they had, as to the Dillon property, higher rights than were held by the holders of the judgments which were not docketed in Dillon county, and that this higher right conferred upon them the privilege of insisting that the mortgage debt be paid as far as possible from the proceeds of sale of the Marion property, thereby leaving the proceeds of the sale of the Dillon property to be applied towards the discharge of the judgment constituting the next succeeding lien thereon.” There were two funds, and the liens on the two were not the same. There was no other way but to divide the money into two funds and apply the two fund doctrine. This would not prevent those who hold judgments in Dillon and Marion from prorating for the balance in Marion county. The exceptions are overruled, and the judment affirmed. Mr. Chiee Justice Gary concurs in the result. Footnotes [1] Footnote. — As to what entry or record of judgment is necessary to complete lien, see 28 L. R. A. 621 to 640.