Where proceedings were had in Minnesota for the sale of property
mortgaged to secure a debt, and the judgment of the court below was
that the property should be sold, there appears to be no error in
the judgment, and it must therefore be affirmed.
The action was commenced in the district court, second district,
County of Ramsey, by Claflin and the other defendants in error,
against Lawler and thirty-two other persons, who were claimants
under Lawler.
The statutes of Minnesota abolished the distinction between the
forms of action at law, and declared that there should be in the
territory but one form of action at law, to be called a civil
action, for the enforcement and protection of private rights and
the redress of private wrongs, except as otherwise expressly
provided by statute. The only pleadings allowed on the part of the
plaintiff were: 1, the complaint; 2, the reply or demurrer; and on
the part of the defendant, the demurrer and answer. All equity and
chancery jurisdiction, authorized by the original act of the
territory, shall be exercised, and all suits or proceedings to be
instituted for that purpose are to be commenced, prosecuted, and
conducted to a final decision and judgment, by the like process,
pleadings, trial, and proceedings, as in civil actions, and shall
be called civil actions.
Under this mode of practice, Claflin and the other
defendants
Page 63 U. S. 24
in error, who were merchants of the City of New York, filed a
complaint against Lawler, as mortgagor, to foreclose a mortgage
given by him to them, upon property in St. Paul. The complaint
claimed that the premises might be sold according to law.
It is not necessary to follow the proceedings under this new
mode of practice. Suffice it to say that Lawler answered, and the
plaintiffs replied. A jury trial was waived in open court by the
attorneys for the plaintiffs and defendants, and the cause was
tried before the judge. The defendants then moved to dismiss the
action for certain reasons, but the motion was overruled. They then
offered depositions which were objected to, but allowed to be read
for certain purposes, after which, the plaintiffs offered some
depositions which were objected to, but allowed to be read. Other
evidence was offered by the plaintiffs, which was objected to, but
received; upon which state of the case, the judge decreed that
Lawler executed the note and mortgage, and was indebted to the
plaintiffs in the amount claimed.
No bill of exception was taken during the progress of the trial,
but the whole case went up to the supreme court of the territory.
That court made the following remarks in the course of its
opinion:
"A jury trial was waived, and the cause was tried by the
court."
"The court rendered a judgment of foreclosure in favor of the
plaintiffs, and made the usual order directing a sale of the
mortgaged premises."
"From the judgment, an appeal has been taken to this Court."
"The paper books furnished to the court contain not only the
judgment roll, including properly the decision of the court below,
but also the evidence in the case. The cause has been argued as
though the evidence was properly before this Court; but this is a
mistake."
"In this case, it is true that the evidence consisted wholly, or
nearly so, of depositions; but there is no more propriety in
sending up written than oral testimony, and we have no right to
look beyond the record in the case. "
Page 63 U. S. 25
"The record consists of the pleadings, the decision of the
judge, and the judgment. The question, then, is, does the record
show any error of law?"
"No error has been assigned, and none appears in the record,
unless it appears in the decision of the court below."
"The decision is something more than a general verdict. Perhaps
any error disclosed by the decision, although such decision may
contain more matter than is required by the statute, may be
noticed. The true course, I apprehend, however, is for the party to
take his exceptions to every ruling, in the same manner as in a
jury trial, unless such ruling will form a legitimate part of the
decision, or the error, if any exist, will appear in the
pleadings."
It was stated in the outset of this report that the case was
brought up to this Court by appeal, and not by writ of error.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The suit was brought on a mortgage executed the first day of
October, 1852, by Ann Curran, the duly authorized attorney in fact
of William B. Lawler, conditioned for the payment of the sum of
four thousand dollars, being part of lot three, in block thirty, in
the town of St. Paul, forming an oblong square, forty-two feet on
Third Street by eighty feet
Page 63 U. S. 26
on Roberts Street. This mortgage was duly recorded on the day
subsequent to that of its execution.
This mortgage, it was alleged, was executed to secure a sum of
money then due to the plaintiffs, and which was likely to become
due, in the further purchase of merchandise from the plaintiffs by
the defendant. The plaintiffs accepted the mortgage, as security
for purchases to be made, or any debts which the firm of Curran
& Lawler might subsequently owe the firm.
The understanding and agreement between the parties was that the
mortgage was to be held by plaintiffs as a pledge or collateral
security, and was not to be cancelled or delivered up until all
purchases which Curran & Lawler might make, and which might
become due at any time within the year -- that is, before the first
of October, 1853. So long as anything should remain due on such
purchases, the indebtment was to be considered and deemed secured
by the mortgage.
The payment of the note and mortgage, as alleged by Curran &
Lawler in their answer, is denied; and it is stated that the amount
of indebtment on the note and mortgage, at maturity, was upwards of
five thousand dollars.
It is difficult to determine the character of the loose papers
certified from the Supreme Court of Minnesota to this Court. They
have neither the form nor the substance of a record. The papers
seem to be thrown together, as much by accident as design; and one
can scarcely gather any special object in reading the transcripts.
It would seem that neither certainty nor order can be extracted
from these papers, and that some form should be adopted by which
the pleadings should be stated, and the points controverted,
whether of fact or of law. Many objections are made to questions
propounded to witnesses, but no exceptions seem to have been
taken.
A jury seems to have been waived, and the facts were submitted
to the court. In such a case, the question of law arising on the
facts would appear to have been decided by the court. Still, no
exception is taken. In fact, there seems to be nothing for this
Court to try, except the validity of the mortgage and the fact of
its discharge. And, even in this
Page 63 U. S. 27
matter, the evidence is in conflict, and it is difficult to
decide the point disputed.
The mortgage was for four thousand dollars, and was to stand as
a security for the balance due the plaintiffs; and in this way it
was intended to give an additional credit to the company. From the
manner in which the mortgage was treated, it appears to have been
designed as a standing guaranty for the sum named.
And, in the language of the court, the said
"action having come on to be heard at the May term of the
district court of Ramsey County, upon the complaint of the
plaintiffs and the answer of the said William B. Lawler, before the
presiding judge of said court, a jury trial therein having been
waived by the respective parties, the same having been decided in
favor of the plaintiffs, and that there is due on the notes and
mortgage upon which the action is brought the sum of four thousand
four hundred and ninety-five dollars and forty cents, with interest
from the 4th October, 1853, amounting in all to $5,084.07, and on
motion it was ordered, adjudged, and decreed, that the mortgaged
premises, or so much thereof as may be necessary, be sold by the
sheriff for the payment of the mortgage; and it is further ordered,
adjudged, and decreed, that the defendants, and all persons
claiming under them, be forever barred,"
&c.
On the appeal of Lawler and others from the district court of
Ramsey County to the supreme court of the territory,
"the matters at issue in this cause having been fully
considered, it appears to this Court that, in the proceedings,
decree, and judgment thereon, in the district court of Ramsey
County, to this Court appealed from, there is no error. It is
therefore ordered that said decree and judgment be in all things
affirmed, with costs,"
&c.
From this last decree there is an appeal now pending before this
Court.
In looking into the facts of this case, it does not appear that
the merits are changed by the views taken by the District Court of
Ramsey County, or by the decision of the supreme court of the
territory.
Page 63 U. S. 28
The evidence is against the discharge of the mortgage. After the
amount claimed under the mortgage, there is still a balance due the
plaintiffs on general account.
Upon the whole, the decree of the supreme court of the
territory is affirmed; and the cause is remitted to the Supreme
Court of the State of Minnesota, to be carried into effect as the
law authorizes.
