Gerkin v. Davidson Grocery Co.

69 P.2d 122, 57 Idaho 670, 1937 Ida. LEXIS 94
CourtIdaho Supreme Court
DecidedApril 24, 1937
DocketNo. 6351.
StatusPublished
Cited by9 cases

This text of 69 P.2d 122 (Gerkin v. Davidson Grocery Co.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerkin v. Davidson Grocery Co., 69 P.2d 122, 57 Idaho 670, 1937 Ida. LEXIS 94 (Idaho 1937).

Opinion

*672 HOLDEN, J.

Eugene G. Gauss and Lydia M. Gauss, husband and wife, were the owners of certain real property located in Jerome county, Idaho. August 25, 1919, the Gausses mortgaged that property to the Equitable Savings and Loan Association for $6,000. October 1, 1919, the Gausses again mortgaged the property to W. A. Heiss for $500. Both mortgages were recorded October 7, 1919. Later, June 4, 1923, the Gausses also mortgaged the property to appellant Davidson Grocery Company for $3,000.

February 25, 1925, the mortgagors conveyed the property by quitclaim deed to Glen Gerken, husband of respondent, the deed being recorded March 2, 1925. Neither Gerken nor respondent assumed or agreed to pay either or any of the above-mentioned mortgages.

August 19, 1925, Heiss, the second mortgagee, instituted foreclosure proceedings against the original mortgagors Eugene G. Gauss and Lydia M. Gauss, Davidson Grocery Company, and Augusta Clouchek, a subsequent judgment creditor. In that suit, neither Gerken nor his wife were made parties nor did either appear therein. Appellant Davidson Grocery Company, haying been served with summons, defaulted. Decree of foreclosure was entered and on January 23, 1926, *673 the property was sold by the sheriff at public auction to Glen Gerken for the sum of $798.29, being the whole amount due upon the judgment, including interest and costs. There was no redemption and subsequently the sheriff issued Gerken a deed to the premises which was recorded February 24, 1927.

February 26th following, appellant Davidson Grocery Company commenced a suit to foreclose its mortgage. The defendants joined were the Gausses, W. A. Heiss, Glen Gerken, H. W. Clouchek, and H. W. Clouchek, executor of the estate of Augusta Clouchek, deceased. Glen Gerken’s wife, respondent here, was not joined as a party or served with summons nor did she appear personally or by attorney. Ger-ken defaulted and did not contest the Davidson Grocery Company foreclosure suit. Decree was entered, the property sold, and the premises bid in by appellant Davidson Grocery Company, to whom later was issued a sheriff’s deed.

Thereafter, to wit, September 29, 1928, respondent Mable R. Gerken commenced suit against the Davidson Grocery Company, W. A. Heiss, H. W. Clouchek, Henry W. Clouchek, executor of the estate of Augusta Clouchek, and Fred H. Turner, to quiet her alleged title to the property covered by the above-mentioned mortgages and deeded to Glen Gerken, her husband, as aforesaid.

July 8, 1929, the Gerken suit to quiet title was tried. It was shown during the trial of the suit that Glen Gerken, out of community funds, had paid the sum of $798.29 in satisfaction of the said Heiss mortgage; that the Gerkens had not occupied the mortgaged property and had not received any of the rents of the property; that Gerken had paid the sum of $600 on the first mortgage given to the Equitable Savings and Loan Association; that Gerken had also paid taxes in the sum of $266.04; that appellant Davidson Grocery Company had collected between $1500 and $1600 in rents and that there were back rents then due; and that the Davidson Grocery Company had purchased the first mortgage and had taken an assignment thereof.

And it appears that during the trial of the Gerken suit to quiet title the following colloquy occurred between the trial court and counsel for the respective parties:

*674 “Mr. COFFIN: It may become necessary to take an accounting of the various items, receipts and disbursements in this action. The necessity of that is remote. This is an action in which an accounting of the rents, profits and expenditures is unnecessary. I suggest that we let the accounting- matter rest until the court has decided the questions of law. I think we can agree as to the amounts.
“The COURT: Your idea is that that is to be determined at a later date in the event a determination of that question becomes necessary?
“Mr. COFFIN: Yes.
“Mr. FISHER: It could only be a partial accounting because there are rents accruing right now. We could only have a partial accounting at this date.
“Mr. BOTHWELL: I wish to offer in evidence the receipt for taxes paid.
“Mr. FISHER: We have no objection to that.
“Mr. COFFIN: Would it be agreeable to you to let the accounting question ride for the present? That in case it becomes necessary we will agree upon it?
“Mr. BOTHWELL: As to the accounting feature of it, that would be agreeable. I would want to inquire to some extent as to transactions between the Davidson Grocery Company and the first mortgagee.
“Mr. COFFIN: You want to know the amount paid to the first mortgagee?
“Mr. BOTHWELL: Yes. We may have a report showing moneys received by the first mortgagee in the way of rents, credits given and money paid to the Davidson Grocery Company-and the first mortgagee. With the introduction of that, and the introduction of the amount of money — the actual amount of money — we have paid for taxes and how it was paid, we will rest.
“Mr. COFFIN: The record should show that the matter of this accounting should be held open so that when final decree is entered it may be brought down to date. If we find anything that would figure in the final decision, we want to introduce it up until that date. ’ ’

*675 Thereafter, a decree was entered quieting in respondent the title to the mortgaged property, in which decree the trial court expressly retained jurisdiction of the matter of an accounting between the parties.

February 26, 1930, the Davidson Grocery Company appealed from that decree to this court. On appeal, respondent contended, first, that inasmuch as the subject matter was concededly community property, she was not bound by the decree in appellant’s foreclosure suit, not having been made a party thereto, and, second, that the proceedings were void since the appellant, having been joined in the Heiss suit, defaulted therein and wholly failed to redeem from the ensuing sale.

February 5, 1931, this court held (Gerken v. Davidson Grocery Co., 50 Ida. 315, 296 Pac. 192) that respondent Mable R. Gerken was not bound by the decree in appellant Davidson Grocery Company’s foreclosure suit, not having been made a party thereto, but that she could not quiet title as against appellant Davidson Grocery Company, mortgagee, without paying the mortgage debt, and reversed the judgment of the district court quieting title to the property in respondent.

On the same day, to wit, February 5, 1931, a remittitur

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Bluebook (online)
69 P.2d 122, 57 Idaho 670, 1937 Ida. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerkin-v-davidson-grocery-co-idaho-1937.