Cross v. Burns

Hanna, J. This was a suit on notes signed by Meyer, Chapter and Gross ; and to foreclose a mortgage executed by Meyer, Chapter and their wives, to secure the payment of said notes. Gross demurred to the complaint, but the demurrer was overruled. This ruling presents the only question for our consideration. It is insisted that § 636, 2 R. S., p. 176, expressly forbids the prosecution of a proceeding to foreclose, and any other action for the collection of the debt at the same time. That this is a proceeding, at the same time, on the note executed by certain parties, and a mortgage executed by certain other parties; that either the proceedings on the note, or those on the mortgage, must cease; that to attempt to proceed on both is error. We do not think this statute was intended to meet such a case as this, but to prevent suits in the nature of actions at law, and in chancery, from being prosecuted at the same time, and as distinct proceedings. Per Guriam. — The judgment is afrirmed, with 5 per cent, damages and costs.