Short v. Nooner

The opinion of the court was delivered by Valentine, J.: This was an action brought by W. S. Short against Jonas L. Fletcher and wife, and E. J. Nooner, on a promissory note and mortgage. The petition shows that Fletcher executed the note; and that he and his wife executed the mortgage. The only allegation in the petition with respect to Nooner is as follows: “That the said defendant E. J. Nooner has or claims to have some interest in or lien upon said premises as described in said mortgage-deed, but plaintiff is ignorant of the nature and extent thereof, and does not know whether the said defendant Nooner has at this time any subsisting lien upon said premises, and he demands proof of the same.” The petition then prayed for a judgment against Fletcher for the amount of the note, and “for a decree” against all the defendants “for the foreclosure of said mortgage-deed, and that the said premises be sold,” etc. Fletcher answered to said petition, pleading payment; but neither of the other defendants made any appearance in the case. Afterward, the following judgment was rendered, to-wit: “That said defendants Amanda M. Fletcher and E. J. Nooner be forever debarred and foreclosed of any and all right, title, and interest in and to the premises, or any part thereof, in plaintiff’s petition described.” This was the only judgment rendered in the case at that term of the court, and such judgment had no connection whatever with any personal [225] judgment for money, or for any judgment for a sale of the mortgaged premises. It was absolute in its terms. The case was then continued as to Jonas L. Fletcher, and afterward, and at the next term of the court, a personal judgment was rendered in favor of Short and against Fletcher for the amount of said note, and that the mortgaged property be sold to satisfy said judgment. Afterward, Nooner filed a motion to set aside the judgment rendered against him. When the motion came on to be heard plaintiff Short appeared specially and objected to the service of the notice of the motion on him, and moved the court to set such motion aside. The court however overruled his objection and motion, and the plaintiff excepted. And Nooner’s motion again coming on to be heard, both of the parties made a general appearance, “the plaintiff Short in person and by his attorney O. F. Hutchings; and said motion was duly heard, and argued by counsel; in consideration of the premises, and the evidence submitted, the court does [did] sustain the motion of said defendant Nooner;” and the plaintiff again excepted. The plaintiff then asked leave of the court to amend his petition, which was granted. Here was another general appearance by the plaintiff. Time was given to the plaintiff in which to make such amendment, and time was also given to the defendant Nooner in which to answer to the amended petition. This case for the supreme court was immediately made, and settled and signed while the action was still pending in the court below in the exact condition above specified. It was evidently irregular and erroneous to render a judgment against Nooner at the time said judgment was so rendered against him; and this would be so even if the allegations of the plaintiff’s petition were considered sufficient in every respect. In this state, in the foreclosure of a mortgage on real estate made to secure a debt, no judgment barring any person’s right, title, interest or equity in or to the mortgaged property should be rendered until a judgment for the sale of such property has first been rendered; and the judgment barring such rights and interests should be made to operate only [226] in connection with such sale and after such sale has been made; and no judgment for the sale of the mortgaged property can regularly be rendered until a judgment for the amount of the debt due and secured has first been rendered ■ in favor of the holder of the. note and mortgage. The judgment rendered against Nooner was not a contingent judgment, depending for finality upon some other action or event to take place in the future. It was absolute in its terms, and barred Nooner of all right to the property, whatever that right might be, and whatever might take place in the future. The court below may have set aside said judgment merely because it was rendered before it properly could be rendered. If so, then the order setting the judgment aside was not a final order, and cannot at this time be reviewed by this court. (McCulloch v. Dodge, 8 Kas. 476.) But if is claimed by plaintiff in error that the court below set said judgment aside principally upon the ground that the plaintiff's petition did not state facts sufficient to constitute a caiuse of action against Nooner; that the petition was so defective that it could not sustain or uphold any judgment as against Nooner; and plaintiff in error therefore claims, that the order setting aside said judgment is final; that it in effect determines the action as between himself and Nooner, and prevents any judgment from being rendered between them; and he therefore claims that the action of the court is reviewable at this time. (Code, §§ 542, 543.) He claims that his right to have the same reviewed was complete as soon as the judgment was set aside, and before he asked leave to amend his petition, and that he did not waive or suspend such right by asking and obtaining such leave. But passing over all these preliminary questions, we think the decision of the court below upon the main question, and upon the merits of the case, was correct. We have already quoted all the allegations of the petition that are supposed to state any cause of action as against Nooner, and we do not think they state any such cause of action. What did Nooner admit by his default, by not answering to said petition? He merely ad [227] mitted the truth of the allegations therein contained — nothing more, and nothing less. He admitted that he “ Nooner has or claims to have some interest in or lien upon said premises as described in said mortgage-deed;” that “plaintiff is ignorant of the nature and extent thereof, and does not know whether Nooner has at this time any subsisting lien upon said premises, and he [plaintiff] demands proof of the same.” These allegations are certainly not sufficient to sustain or uphold any judgment. The usual allegations in cases of this kind are substantially as follows: “ That the defendant Gr. H. has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage.” This form is taken from 2 Estee’s Pleadings and Forms, 265, No. 450. See also, Miller’s Pl. & Pr. 610, No. 208; 5 Wait’s Pr. 199; 1 Nash Pl. & Pr. (4 ed.) 737, No. 5; 2 Van Santvoord’s Pl. (2 ed.) No. 55; 2 Monell’s Pr. 390, No. 147; Curtis’ Eq. Prac. 59 to 62, Nos. 18 and 19. This form of pleading, or of allegation, in this particular class of cases, (as above quoted from 2 Estee’s Pl. & Forms,) has been held to be sufficient; (Drury v. Clark, 16 How. Pr. 424; Frost v. Koon, 30 N. Y. 428, 448;) and we think it is sufficient. But the form adopted by the plaintiff below we think has never been held to be sufficient by any court, and we do not think that it is sufficient. And we do not think that such a form ever was sufficient in any case, either in law or equity. Every word of the plaintiff’s petition may have been true, and yet Nooner may have been the absolute owner of the property in controversy, holding the same free and clear from all incumbrances. There is no allegation in the petition that Fletcher, the mortgagor, ever owned or had any interest in the property. And Nooner claims that he himself is the owner thereof. There should have been some allegation in the petition showing that Nooner’s claim to the property was junior, or inferior, to the mortgage-lien of the plaintiff. And it will be noticed that the said judgment against Nooner was.not a judgment barring only such rights and interests of Nooner as were sub [228] sequent to the mortgage-lien, but it was a judgment that barred all of Nooner’s rights and interests in and to the property. In connection with this subject, and as to who are proper parties in foreclosure suits, and as to what defendants confess by a default in such suits, see Frost v. Koon, supra; Lewis v. Smith, 9 N. Y. 502; same case, 11 Barb. 152. The form given by Judge Swan in his work on Pleading and Precedents (No. 142, page 416,) we think is hardly sufficient. Counsel for plaintiff in error has made a point in this court, as well as in the court below, that the service of the notice of. the motion to set aside said judgment was not sufficient. We suppose it is not necessary to say anything further upon this question. The order of the court below setting aside said judgment will be affirmed. All the Justices concurring.