First State Bank of Easby v. Bratlie

North Dakota Supreme Court

First State Bank of Easby v. Bratlie

172 N.W. 821, 44 N.D. 205, 1919 N.D. LEXIS 196

DecidedApril 24, 1919

StatusPublished

This text of 172 N.W. 821 (First State Bank of Easby v. Bratlie) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First State Bank of Easby v. Bratlie, 172 N.W. 821, 44 N.D. 205, 1919 N.D. LEXIS 196 (N.D. 1919).

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Opinions

Robinson, J.

This is an appeal from a foreclosure judgment for $505.72 and $72.19 costs, and that a certain quarter section of land be sold to pay the same. As the findings and the evidence show, the action was commenced prematurely. The plaintiff had no cause of action without first delivering to the defendants a promissory note made by them to the plaintiff for $350 and interest, and a note for $245, made to them by Alfred Lunstad, but, in furtherance of justice, the court decided that no judgment should be entered until the delivery of said two notes to the clerk of the court by the plaintiff, and that within thirty days from the date of the findings the defendants might pay the amount found due without any costs. But, as the action was prematurely brought, without first delivering said two promissory notes, the defendants should not have been penalized with the costs unjustly incurred by reason of their failure to pay so large a sum within thirty days. The order should have been either that the action be dismissed, without prejudice, or that within ninety days the defendants pay the sum found due, without any costs whatever and, in ease [207]*207of nonpayment, then that the land be advertised and sold to pay the same.

As the evidence shows, and as the court found, the $350 note was made to the plaintiffs by Alfred Lunstad, a son-in-law of the defendants, and by them it was indorsed and guaranteed without any consideration only a promise of the plaintiff to deliver up all the notes and indebtedness under certain conditions on the payment of said $350 note; that afterwards, in renewal and payment of said $350 note, the defendants made to the plaintiff the notes and the mortgage in suit, and then the plaintiff unjustly and unreasonably and without any consideration demanded and required Alfred Lunstad to make to it his promissory note for $245 against the protests of the defendants. There is some strong testimony that the mortgage and the notes thereby secured were never delivered, but that was not made a direct issue by the answer, and on these and the other issues the findings of fact appear to be just and fairly in accordance with the evidence. However, the judgment must be modified in accordance with this opinion by striking from it the item of costs and giving the defendants ninety days from the filing of the remittitur to pay the judgment, with interest, and if it be not paid within that time, then that the land may be advertised and sold to pay the same, with interest and the costs of sale.

Judgment modified and affirmed, without costs to either party.

Grace, Birdzell, and Bronson, JJ., concur.

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Robinson, J.

This is an appeal from a foreclosure judgment for $505.72 and $72.19 costs, and that a certain quarter section of land be sold to pay the same. As the findings and the evidence show, the action was commenced prematurely. The plaintiff had no cause of action without first delivering to the defendants a promissory note made by them to the plaintiff for $350 and interest, and a note for $245, made to them by Alfred Lunstad, but, in furtherance of justice, the court decided that no judgment should be entered until the delivery of said two notes to the clerk of the court by the plaintiff, and that within thirty days from the date of the findings the defendants might pay the amount found due without any costs. But, as the action was prematurely brought, without first delivering said two promissory notes, the defendants should not have been penalized with the costs unjustly incurred by reason of their failure to pay so large a sum within thirty days. The order should have been either that the action be dismissed, without prejudice, or that within ninety days the defendants pay the sum found due, without any costs whatever and, in ease [207]*207of nonpayment, then that the land be advertised and sold to pay the same.

As the evidence shows, and as the court found, the $350 note was made to the plaintiffs by Alfred Lunstad, a son-in-law of the defendants, and by them it was indorsed and guaranteed without any consideration only a promise of the plaintiff to deliver up all the notes and indebtedness under certain conditions on the payment of said $350 note; that afterwards, in renewal and payment of said $350 note, the defendants made to the plaintiff the notes and the mortgage in suit, and then the plaintiff unjustly and unreasonably and without any consideration demanded and required Alfred Lunstad to make to it his promissory note for $245 against the protests of the defendants. There is some strong testimony that the mortgage and the notes thereby secured were never delivered, but that was not made a direct issue by the answer, and on these and the other issues the findings of fact appear to be just and fairly in accordance with the evidence. However, the judgment must be modified in accordance with this opinion by striking from it the item of costs and giving the defendants ninety days from the filing of the remittitur to pay the judgment, with interest, and if it be not paid within that time, then that the land may be advertised and sold to pay the same, with interest and the costs of sale.

Judgment modified and affirmed, without costs to either party.

Grace, Birdzell, and Bronson, JJ., concur.

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Bluebook (online)

172 N.W. 821, 44 N.D. 205, 1919 N.D. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-state-bank-of-easby-v-bratlie-nd-1919.