Kiger v. Franklin

Perkins, J. Suit to foreclose a mortgage. Judgment of sale.. The mortgage debt was payable in installments, the last of [103] which was not due at the rendition of judgment, and the aggregate of which exceeded $1,000. The suit was commenced after the act of 1859 took'effect. It is urged that the Common Pleas Court had not jurisdic•fion of the suit. We think the Court had jurisdiction. It was conferred by the act of March 5, 1859. Acts 1859, p. 93. By the organic act of 1852, the Common Pleas had concurrent jurisdiction with the Circuit Court, in certain actions where but $1,000 was involved. By the amendatory act of 1859, the Common Pleas has concurrent jurisdiction with the Circuit Court, in those actions, without regard to the amount involved. By the act of 1852, the Common- Pleas had concurrent jurisdiction with justices of the peace, in actions where the amount involved was over $50, and less than $100. By the amendatory act, the Common Pleas has concurrent jurisdiction with justices, “ in all cases except as otherwise expressly provided, and subject to the law in relation to the payment of costs which is, that where a party sues in the Circuit or Common Pleas Court, in a case that might have been instituted before a justice, and recovers less than $50, except, &c., he shall pay costs. 2 R. S., p. 126. A prior judgment, for the same cause of action, was set up in the answer ; but when given in evidence if did not appear to have been a judgment on the merits, and, hence, was no bar. There was no direct evidence that the notes sued on with the mortgage, were those named in the mortgage. The dates, and amounts, and parties, corresponded; which was, prima facie, sufficient. There was some evidence given that the mortgaged property was not divisible, but the reasons why were not shown. It is claimed that a judgment for the sale of the whole was erroneous. "Where judgment of foreclosure, in such a case, passes by default, it may be necessary, the proceeding being, in. a measure, ex parte, that the record should show the fact as well as the reason of non-divisibility; but where the defendant appears, and the question of divisibility is referred to .a master, who reports, generally, that the premises are not divisible, without specifying the reason why, and no exception [104] is taken to the report, and judgment .is suffered to pass, we take it the objection can not be raised for the first time in the Supreme Court. So, where the defendant appeared, and ^e ca/use was n°f referred to a master, but the question of divisibility was tried by the Court, and general evidence was heard without objection, the defendant asking no questions of the witnesses, and in no manner contesting the point below, he will not be entitled to a reversal upon the objection here. G. E. Shipley and A. Kilgore, for appellant. W. Brotherton, for appellee. Per Guriam. The judgment is affirmed, with 5 per cent, damages and costs.