Herring v. Neely

Supreme Court of Iowa

Herring v. Neely

43 Iowa 157

CourtSupreme Court of Iowa

DecidedApril 22, 1876

StatusPublished

Cited by4 cases

This text of 43 Iowa 157 (Herring v. Neely) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herring v. Neely, 43 Iowa 157 (iowa 1876).

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Opinion

Beck, J.

No objection is made to the form and manner of the proceedings, on account of their equitable character and their prosecution as an action at law. It could not be sustained if made. Van Orman v. Merrill, 27 Iowa, 476.

The evidence upon which the case was tried is not before us. The defendants’ objections, it is claimed by counsel, are founded upon matters which appear in the pleadings and decree.

i. equitabi,® mortgage;11' practice. I. It is first insisted that the court erred in rendering a decree foreclosing the mortgage, because no such claim of re^ef is made in defendants’ answer. But they do claim such relief as, under the rules of equity, they are entitled to recover. Their prayer for relief is general. After the court had found the deed and bond operated as a mortgage, it may have found that equity required, in order to protect the rights of one or both of the parties, the mortgage to be foreclosed. One ground for such an order would be the avoidance of a multiplicity of actions. Others based upon the evidence may have appeared. We ■ cannot hold the decree to be erroneous in the absence of some positive showing of error:

• II. It is urged that the finding of the court as to the amount due plaintiff, after deducting the indebtedness found upon defendants’ claims, is erroneous. But the question of the court’s findings upon the facts cannot be determined, as we do not have the evidence before us.

2<_.._. • • The answer of defendant brought all the'matters of account ■ and the claims of the two parties which were set out in their pleadings, including the mortgage and the sums due thereon, befóré the court. The pleadings, as [159]*159we have seen, authorized the court to foreclose the mortgage when the deed and bond were found to constitute such a security, if equity so required. In rendering the décree of foreclosure the amount found due defendants was properly' deducted from the sum ascertained to be due plaintiff. Whether these amounts were correctly found by the court, we cannot determine in the absence of the evidence. The decree violated no principle of equity or rule of law, so far as we can determine from the record.

Affirmed.

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Beck, J.

No objection is made to the form and manner of the proceedings, on account of their equitable character and their prosecution as an action at law. It could not be sustained if made. Van Orman v. Merrill, 27 Iowa, 476.

The evidence upon which the case was tried is not before us. The defendants’ objections, it is claimed by counsel, are founded upon matters which appear in the pleadings and decree.

i. equitabi,® mortgage;11' practice. I. It is first insisted that the court erred in rendering a decree foreclosing the mortgage, because no such claim of re^ef is made in defendants’ answer. But they do claim such relief as, under the rules of equity, they are entitled to recover. Their prayer for relief is general. After the court had found the deed and bond operated as a mortgage, it may have found that equity required, in order to protect the rights of one or both of the parties, the mortgage to be foreclosed. One ground for such an order would be the avoidance of a multiplicity of actions. Others based upon the evidence may have appeared. We ■ cannot hold the decree to be erroneous in the absence of some positive showing of error:

• II. It is urged that the finding of the court as to the amount due plaintiff, after deducting the indebtedness found upon defendants’ claims, is erroneous. But the question of the court’s findings upon the facts cannot be determined, as we do not have the evidence before us.

2<_.._. • • The answer of defendant brought all the'matters of account ■ and the claims of the two parties which were set out in their pleadings, including the mortgage and the sums due thereon, befóré the court. The pleadings, as [159]*159we have seen, authorized the court to foreclose the mortgage when the deed and bond were found to constitute such a security, if equity so required. In rendering the décree of foreclosure the amount found due defendants was properly' deducted from the sum ascertained to be due plaintiff. Whether these amounts were correctly found by the court, we cannot determine in the absence of the evidence. The decree violated no principle of equity or rule of law, so far as we can determine from the record.

Affirmed.

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43 Iowa 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herring-v-neely-iowa-1876.

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