Gowran v. Lennon

Maeshail, J. The foregoing gives the features, in general, of appellant’s case. The conclusion arrived at renders a statement in detail unnecessary. Relief was sought by one whose claim was, as be thought, jeopardized by danger of the estate of the mortgagor, so far as covered by the mortgage, being extinguished by the foreclosure judgment. On that account be invoked the court under sec. 2832 of the Statutes for-permission to impeach the mortgage indebtedness and to clear the way therefor by vacating the judgment of foreclosure and making him a party defendant. Many questions are raised by counsel for appellant which need not even be stated. I|, taking the most favorable view for him which could be reasonably done in case be were competent to impeach the mortgage indebtedness if not in judgment, there is still an insuperable difficulty in bis obtaining the relief invoked, the question of competency is immaterial. That is the precise situation we have before us. the statutory authority upon which be relies extends to granting relief where, under all the circumstances, there has been some excusable omission through inadvertence or otherwise, and justice seems to require that opportunity for a judicial hearing should be had notwithstanding such omission. An appeal in such a case is addressed to the'sound discretion of the court. Hence when such discretion shall have been exercised the result cannot be disturbed unless it appears so clearly wrong as to evince an abuse of judicial power.' That, manifestly, takes a pretty strong case. The- rule above stated is recognized by appellant but he contends that it does not apply in the particular instance because the trial court declined to exercise its discretion, — denying his application upon the ground of there being solvent parties from whom his claim could readily be collected. In that it is considered, counsel is wrong. The record, as a whole, bears convincing evidence that the- trial court regarded the judgment of foreclosure as not working any injury to appellant [570] because bis claim, if valid, is collectible regardless of the mortgage claim, as one element of the entire situation to be measured in determining whether the judgment is so prejudicial to him that his due protection requires judicial discretion to be exercised in his favor. If the court deemed appellant’s case somewhat uncertain as to merits, it might well have given much, and perhaps controlling, weight in denying the application, to the fact that there is open ample opportunity for him to collect his claim regardless of the foreclosure judgment or mortgage indebtedness. Now it appears that every alleged circumstance upon which appellant grounded his application was put in issue. His case was by no means a strong one, even if he had competency to be heard at.all. Add to its weakness the circumstance that interference in the manner sought was unnecessary for his protection, and no fair ground is left for holding that the order appealed from is grounded on abuse of judicial authority. So the order must be affirmed and without any suggestion supporting appellant’s claim of competency to intervene in the manner proposed. By the Court. — The order is affirmed.