Taylor v. Blasingame

Hall, Justice. [Blasingame made an affidavit to foreclose a chattel' mortgage. In it he stated that “he is the owner and holder of a certain promissory note, given by John T. Taylor, of said county, to A. B. Small or bearer.” The affidavit also described the mortgage given to Small to secure the note; alleged that there was due onit $50.00 principal, $5.00 interest and $10.00 attorney’s fees, and concluded thus: “ and deponent makes this affidavit that said mortgage may be foreclosed as provided by law, the same having been transferred in writing by said A. B. Small to deponent.” Thefi.fa. issued on this affidavit was for $50.00 principal, $5.00 interest, $10.00 attorney’s fees, and costs, “which James G. Blasingame, bearer,” lately recovered, etc. The defendant filed an affidavit of illegality, on the ground, among others, that the said James G. Blasingame could not foreclose the mortgage as bearer. The case was carried to the superior court by appeal from the county court, where the jury found a verdict for $32.00 with interest. Defendant moved for a new trial, on the following among other grounds* (1.) Because the court admitted the fi. fa. in evidence, over objection, on the ground that it was issued in the name of Blasingame, as bearer, and did not show by what authority he foreclosed. (2) Because the court refused to dismiss the appeal, after plaintiff testified that, at the date of the foreclosure, [113] he only claimed $32.00. The motion was based on the ground that, although the mortgage was foreclosed for $50.00, the plaintiff only claimed, in fact, $32.00, and could not appeal. (He testified that $50.00 was the amount clue on the mortgage, but that, on a settlement of accounts for labor and cotton on the one side, and provisions on the-other, made in November, 1881, he owed defendant $18.00, which he credited on the note secured by the mortgage, so that, at the time of the foreclosure, there was due .on the-mortgage only $32.00, besides interest and attorney’s fees,, “and that was all I claim.”) The motion was overruled, and defendent excepted.]