State ex rel. Security Bank v. Buttz

131 N.W. 241, 21 N.D. 540, 1911 N.D. LEXIS 104

• Court: North Dakota Supreme Court
• Decided: May 10, 1911
• Status: Published

Opinions

Burke, J.

Relator brings certiorari to test tbe jurisdiction of tbe district court of Benson County North Dakota, to enjoin a real estate mortgage foreclosure sale by advertisement. Two grounds are urged against the jurisdiction of tbe lower court: First, that tbe affidavit upon which tbe restraining order is based was made by a subsequent mortgagee, and not by tbe mortgagor, bis agent, or attorney, and second, that said affidavit is not sufficient to confer jurisdiction, because it states conclusions of law instead of facts.

It will be note.d in tbe beginning that this writ is merely to determine whether or not the lower court had jurisdiction of the matters before it, and not to review its rulings from a discretionary standpoint. If the lower court had jurisdiction, we are not concerned at this time with the wisdom of its rulings. Keeping this in mind, we hold that the affidavit was not subject to attack upon either of the above-mentioned grounds, and that the trial court had jurisdiction.

While it is true § 7454, Revised Codes 1905, mentions only the mortgagor, his agent, or attorney, we feel that the legislative intent was to provide relief in cases where injustice would be done to the mortgaged estate if a sale by advertisement were to proceed, and that the affidavit might be made by anyone having an interest in the premises holding in privity to and under the mortgagor. This view was taken by this 'court in the case of Scott v. District Ct. 15 N. D. 259, 107 N. W. 61, and the reasons given in the opinion in said case seem sound to us, and will be followed.

The affidavit is not subject to attack upon the other ground mentioned, — that conclusions of law, and not facts, are therein cited. The affidavit sets forth that the mortgagee is foreclosing by advertisement, and that the subsequent mortgagee is interested as such and has a defense to the debt secured by the mortgage about to be foreclosed. That in the notice of sale “about $500 more is claimed due upon said mortgage than is actually due upon said mortgage.” We think the affiant has stated an ultimate fact, to wit: That the mortgagor is attempting to collect an overcharge of $500 upon his mortgage. He need not plead his evidence. It nowhere appears that affiant knew any facts regarding the overcharge excepting those stated. Facts very .similar to those in this case were before this court in the case of McCann v. Mortgage, Bank & Invest. Co. 3 N. D. 172, 54 N. W. 1026, and Judge Wallin held the affidavit sufficient, and used the following language: “It sufficiently appeared by the affidavit that the mortgagee had instituted foreclosure proceedings by advertisement, and also that the mortgagor had a 'valid defense’ against the collection of the whole of the amount claimed to be due on such mortgage.’ These general averments, if satisfactory to the judge who made the order, would be alone sufficient to authorize the judge at his discretion to make the order. . . The proceeding is wholly statutory, and there is no requirement that the affidavit made on behalf of the mortgagor shall be couched in any specific terms, nor that it shall be framed under the strict rules', governing the pleader in framing the pleadings in an action. All that is required is that the facts enumerated in the statute shall be set out in the affidavit, in such manner and form as will satisfy the judge to-whom the affidavit is presented. ... We think the statute is not intended to be mandatory, but is, on the contrary, intended to clothe-the judge of the district court with a pure discretion, which, unless-abused, cannot be reviewed in an appellate court.” It is clear from the above reasoning that the affidavit in the case at-bar, while subject to criticism, is sufficient to confer jurisdiction upon the trial judge, and the writ of certiorari is hereby dissolved.

Spalding, J., dissenting in part.