Goodhue v. Daniels

Servers, J. i. rnoADWG: action in voprosoucaiive capacioy: do-ma!. I. The ground of demurrer, in substance, was that the defendant had failed to show any right to receive the rents which accrued after the appointment of . t, • • • , i a receiver, it is insisted the court erred m sustaming 'the demurrer and rendering a decree, because the answer denied the plaintiff had qualified as receiver. The plaintiff did not bring the action in his individual capacity, but as receiver, or in a representative capac [21] ity. In sncli case, a mere denial that the plaintiff had duly qualified as receiver was not sufficient, but the. facts relied on should have been stated. Code, § § 2716, 2717. . It is also insisted the allegations of fraud contained in the petition were denied in the answer, and hence the decree is erroneous. Such allegations, in the view we take of the case, were immaterial, and in no manner affected plaintiff’s right to recover. „ „ „ mortgage: receiver. II. It is further insisted that, as it was alleged in the petition the mortgaged premises were inadequate as a security, and that default had been made in the payment of debt, and that such matters were denied in £he answer, it was erroneous to render a decree until these issues of fact had been disposed of in the usual manner. The abstract fails to state that the defendant claimed the right to have these issues of fact determined before the rendition of the decree. As error must affirmatively appeal', it is a matter of some doubt whether such issues should not be regarded as waived or abandoned. But be this as it may, such issues must be regarded as having been adjudicated in the original action, and that such adjudication must be regarded as final and conclusive. 3_._. • III. In the original action the defendant filed an answer and contested the right of the plaintiff to the relief asked. From the decree entered no appeal was taken. The mortgage is not contained in the abstract. "We, therefore, have no means of ascertaining its terms and conditions. It must be presumed to be sufficient to justify the relief granted, unless under the statute a receiver cannot be appointed, or the mortgagee is not in any case entitled to the rents and profits of the mortgaged premises until the statutory period of redemption has expired. This question was suggested but not decided in Myton v. Davenport et al., 51 Iowa, 583; and we have no occasion to determine it now. The object of the original action was, therefore: First, to obtain a foreclosure of the mortgage. Second, the ap [22] pointment of a receiver; and, Third, to obtain an adjudication that tbe rents and profits should be collected by the receiver and applied as the court should direct. The decree, among other things, provided “that S. W. Goodhue * * be and he is hereby appointed * * rereiver * * with full power and authority to take charge of said premises and collect the rents and profits of said property, pay the taxes thereon, keep the buildings insured and make the necessary repairs thereon, and do and perform all other acts necessary to be done to protect said property and preserve the same from waste.” This, without doubt, we think, is an adjudication that the plaintiff, as receiver, is entitled to the rents, and having been made in an action in which the defendant had the opportunity to be heard, and the court having jurisdiction of the subject matter, it cannot be again adjudicated in this proceeding, but must be regarded as conclusive on the rights of these parties. It is alleged the personal judgment against the defendant is erroneous, but we think it was the only adequate relief that could be granted. Affirmed.