White v. Douglas

The opinion of the Court was delivered by Mr. Justice Fraser. This is an action to foreclose a mortgage. The mortgage was a second mortgage. The first mortgagee was made a party. -At the time of granting the order of foreclosure the Court granted also personal judgments -against the defendant for the amount due on the mortgage debts. Prom this judgment the defendant appeals on the ground that it was an abuse of discretion to grant the personal judgment under subdivision 2, § 430, Code of Civil Procedure, 1922, which reads: *410 “The Court shall also have the power to render judgment against the parties liable for the payment of the debt secured by the mortgage and to direct at the same time the sale of the mortgaged premises.” The old practice was to grant an order of sale of the mortgaged premises. The amount derived from the sale was credited on the mortgage debt and a personal judgment given for the deficiency. This statute simply allows the Court in its discretion to grant the personal j udgment at the time of giving the judgment for foreclosure. It was never contemplated that the statute gave the Court a discretion to grant judgment for only $5,000.00. upon a bond for $10,000.00. This statute did not purport to give a discretion to the Circuit Judge as to the amount of the judgment, but simply as to whether the personal judgment should be given at the time of the judgment of foreclosure or to await the coming in of the Master’s report of sale. The appellant has shown no valid reason why the judgment should have been given for a smaller amount, or why the personal judgment should not have been given at the time of the order of foreclosure and sale. The judgment is affirmed. Messrs. Justices Watts, Cothran-arid Marion concur. Mr. Chief Justice Gary did not participate.