Stockman's Bank v. Lytle

220 N.W. 857, 53 S.D. 424, 1928 S.D. LEXIS 102

• Court: South Dakota Supreme Court
• Decided: August 18, 1928
• Docket: File No. 6218
• Status: Published

Opinion

BROWN, J.

A real estate mortgage securing a note having ‘been declared due by the mortgagee by virtue of an acceleration clause, the mortgage was foreclosed by advertisement, and judgment by default ‘was taken by 'plaintiffs for a deficiency on the note. Defendants appeal alleging as error that the note, by its terms, was not due when the action was commenced or when the judgment was taken, and that the acceleration clause in the mortgage did not affect the maturity of the note for the purpose of a personal judgment. They cite Birken v. Hickey, 42 S. D. 472, 176 N. W. 137, in support of their contention that the judgment should be reversed for that reason.

In Birken v. Hickey the premature commencement of the action was specially pleaded. In the present case the defendants made no appearance, and the objection of prematurity is first raised on this appeal.

“An abjection to the premature commencement of an action must be made in the court below, and cannot be urged' for the first time on appeal.” 1 C. J. 1152.

The judgment appealed from is affirmed.

BURCH, P. J, and FO'LUEY and SHERWOOD, JJ., concur. CAMPBELL, J., not participating.