Opinion
No. 33812.
October 2, 1939. Suggestion of Error Overruled October 30, 1939.
1. DISMISSAL AND NONSUIT.
Failure to act on a cause at a term to which the cause stands continued by operation of law in all aspects does not operate to discontinue cause (Code 1930, sec. 734).
2. MORTGAGES.
In suit on note and to foreclose trust deed wherein court entered decree directing trustee to foreclose trust deed and report sale at designated term, and providing that plaintiff have execution against defendant for balance due on judgment, court had jurisdiction to confirm sale and enter deficiency decree at term subsequent to that at which trustee had been directed to report sale, without service of further process on defendant, where trust deed was not foreclosed immediately after entry of original decree at instance of defendant in order that he might have time to save property (Code 1930, sec. 734).
3. JUDGMENT.
Where, on November 5, 1931, chancery court entered decree directing trustee to foreclose deed of trust and report sale at March term, 1932, and providing that plaintiff have execution against defendant for balance due on judgment and sale was had by trustee on October 30, 1933, which was confirmed at November, 1933, term of chancery court when deficiency judgment was entered, action commenced March 14, 1939, on deficiency judgment was not barred by seven-year statute of limitations, the date of entry of the deficiency judgment being the time from which the statute of limitations commenced to run (Code 1930, sec. 734).
4. MORTGAGES.
Written motion for deficiency judgment is unnecessary under statute where motion is made orally, and absence thereof will deprive judgment debtor of no substantial rights (Code 1930, sec. 466).
5. JUDGMENT.
The fact that no motion in writing was made for deficiency decree did not invalidate decree which was regular in form as against collateral attack in suit on bill for scire facias and renewal of decree, since it would be assumed that court acted at instance of judgment creditor in rendering deficiency judgment and that oral motion was made therefor at time court entered final decree (Code 1930, sec. 466).
6. MORTGAGES.
A deficiency decree entered in trust deed foreclosure suit was not invalid for want of motion in writing required by statute where written prayer in original bill for deficiency decree fully apprised defendant of purpose and desire of plaintiff in the matter (Code 1930, sec. 466).
7. JUDGMENT.
A proceeding commenced March 14, 1939, on bill for scire facias and to renew deficiency decree which had been entered in November, 1933, was not barred by statute effective April 4, 1934, providing that no action should be commenced or brought on note secured by trust deed where trust deed had theretofore been foreclosed except such action should be brought within one year from effective date of act, since proceeding was action based on judgment and not on the note (Laws 1934, chap. 251).
8. MORTGAGES.
After entry of decree confirming trust deed foreclosure sale and fixing liability of mortgagor for deficiency, process was necessary in order to confer further jurisdiction on court if further judgment or decree was sought to be taken against mortgagor (Code 1930, sec. 734).
APPEAL from the chancery court of Alcorn county; HON. JAMES A. FINLEY, Chancellor.
Chester L. Sumners, of Corinth, for appellant.
The decree rendered on November 5, 1931 was full, complete, and final and left nothing further to be decided or determined.
Blum v. Planters Bank Trust Company, 154 Miss. 800, 122 So. 784; Robertson v. Johnson, 40 Miss. 500.
The decree rendered on November 8, 1933 is not ambiguous and does not require a construction by the court. It shows on its face that it is not a new decree in personam, but only a confirmation of sale with credit applied and the original judgment in personam, but only a confirmation of sale with credit applied and the original judgment in personam reduced by the credit.
Blum v. Planters Bank Trust Company, 154 Miss. 800, 122 So. 784; Robertson v. Johnson, 40 Miss. 500.
If the second decree be construed as a new judgment in personam and a renewal of the original judgment of 1931, then it is void (a) for want of notice and jurisdiction of party, (b) no motion, written or oral, was made for the judgment, and (c) the decree was taken on report of trustee for confirmation of sale and the trustee was not a party to the original suit.
Griffith's Chancery Practice, page 62, sec. 62, page 121, sec. 117, page 221, sec. 223, and page 417, sec. 404; Continental Gin Co. v. Mathers, 132 Miss. 821, 96 So. 744; Park Company v. Standard Bond, etc., Co., 162 Miss. 684, 138 So. 811; Sections 318 and 466, Code of 1930.
Action on the decree rendered November 5, 1931 is barred by the Statute of Limitations.
Sec. 2303, Code 1930.
The motion now before the court, being filed March 14, 1939 to declare the decree of confirmation of November, 1933, a judgment in personam, is barred by the provisions of Chapter 251, Laws of 1934.
Lewis v. Simpson, 176 Miss. 123, 167 So. 780.
The lower court was without jurisdiction or authority of law to enter the decree in the manner and form it is rendered.
Sections 466 and 2303, Code 1930.
C.R. Bolton, of Tupelo, for appellee.
The appellee was entitled to a decree directing the issuance of a writ of execution on the judgment rendered on November 8, 1933. The procedure asking for the issuance of a writ of execution was proper. The petition filed by appellee recited that the judgment rendered on November 8, 1933 against H.E. Roebke remained unpaid and that Roebke declined to pay it and claimed it was invalid and in effective, charged that the judgment was invalid, and prayed that the court summon the judgment debtor to appear at the next term of court to make any objections he had to the issuance of execution. Another course could have been taken, that of issuing execution, seizing Roebke's property, and then let him file his contest over the judgment which he claimed was invalid; but appellee took the more considerate course toward Roebke and, knowing that he claimed the judgment was not valid, offered to settle that question before seizing any of his property. There was no reason why this question could not as well be settled before as afterwards. The petition in effect asked for a writ in the nature of a scire facias to secure the issuance of the writ of execution. In pursuing this course, we were following well established precedent.
U.S. v. Ewing, 19 F.2d 378; 24 R.C.L. 666-7; Sec. 453, Code 1930; The entry of a judgment against the defendant on November 8, 1933 was expressly authorized by Sec. 466 of Code 1930.
Continental Gin. Co. v. Mathers et al., 132 Miss. 821, 96 So. 744; Edgewater Park Co. v. Standard Bond Co., 162 Miss. 684, 138 So. 811.
The record shows nothing as to oral motions at the time of the confirmation and judgment, and of necessity could show nothing, especially after a lapse of time from 1933 to 1939. The law makes no provision for recording such and therefore we cannot refer to it in the record; but we do say that such motion was made to the court and the law will so presume, or else why did the court render the judgment? We cannot refer to such motion "in haec verba," nor is any set form of words necessary. All that is required is that request be made of the court for the decree. This court is sufficiently informed of the general practice of attorneys in Chancery Court to present the decrees to the Chancellor for signature to take judical notice of it. With whatever formality or informality this may be done, it is in effect a motion for the relief granted in the decree. We say that oral motion was sufficient in this case.
Griffith's Chancery Practice, Page 415, Sec. 402.
The statute provides that this judgment for the balance shall be given "upon motion." It does not limit it to a motion by the complainant. We suggest that a court of equity has power to enter decrees according to right even of its own motion. It could not enter a judgment in personam where none was asked in the bill; but where it was prayed for, and such judgment was rendered in the first instance, it was not only the right, but probably the duty of a court of equity to see to the proper application of the proceeds of the sale as a credit, even of its own motion, and this could not be better done than by entering a second judgment for the balance after credit has been given. Such was not necessary to be done by the court of its own motion in this case, because the record shows the complainant asked for it.
The important matter to the defendant was the confirmation or not of the sale and the sufficiency of the price. Upon that depended the credit defendant should receive on the judgment against him. Those things being passed without objection, the rendering of a judgment for the balance was subject to exact calculation, and could not be affected by either party. And yet appellant makes no complaint of the sale, the price or the confirmation thereof, matters which were subject to contest but complains only of the entry of judgment for the balance, which was wholly a matter of calculation and reduced his judgment liability below the first one. Such being a matter of right, and no departure from the prayer of the original bill, personal service by the original summons was sufficient and no further legal notice was necessary. However, the record shows appellant had actual notice.
Weir v. Field, 67 Miss. 292.
The bill of complaint charges indebtedness against the defendant bearing interest at the rate of 8% per annum. This was confessed by the defendant. The first decree providing for interest at 6% was merely an error in favor of the defendant and of which he could not complaint. When judgment was entered for the balance on November 8, 1933, it provided that it should bear interest at 8%, at the rate which the debt theretofore had borne, as provided by Section 1949 of Code of 1930.
Argued orally by Chester L. Sumners, for appellant and C.R. Bolton, for appellee.
On June 29, 1931, and prior thereto, the appellant, Roebke, was indebted to the Peoples Bank Trust Company on a promissory note providing for interest and attorney's fees on an account at the bank which Roebke had overdrawn in the sum of $725.80. Contemporaneously with the note, Roebke had executed a deed of trust on lands, to secure the payment of the note, and any other indebtedness which he might owe the bank.
The note being past due on the mentioned date, Love, in charge of the Peoples Bank Trust Company in liquidation, filed his bill in the Chancery Court of Alcorn county, in which he sought a decree of foreclosure of the trust deed, and further prayed, "that a decree be rendered against the said Roebke for the amount due by him on said note above set out, and the overdraft above set out, and all costs of this cause, and that it be directed that the proceeds from the sale of said property under said deed of trust be applied toward the payment of the amount so adjudged to be due by the said H.E. Roebke to the complainant, and that after giving credit on said sum for the net amount realized from said sale of said property that a personal decree be rendered against the said H.E. Roebke for the balance that may be due by him to said complainant in charge of the Peoples Bank Trust Company in Liquidation; and if complainant has not asked for the proper relief then for such other, further and general relief as (to) the court may seem right and proper;" etc.
Subsequently, on the 5th day of November, 1931, at the succeeding regular term of the Chancery Court, a decree was entered upon service of process, decree pro confesso and proof, to the effect that the complainant, Love, have and recover of Roebke the total sum of $2,507.05, to bear interest at the rate of six per cent per annum. The decree then directed the trustee named in the deed of trust on the lands described, the sale to be conducted as provided therein, and report of same to be made to the Chancery Court at the March term, 1932; and directed that the proceeds of the sale be first applied to the costs thereof, the balance to the payment of the judgment; and the remainder, if any, to be paid over to Roebke.
The decree further provided that Love have an execution against the defendant, Roebke, for the balance due on the judgment, with interest and costs.
The record shows that the sale by the trustee was had on the 30th day of October, 1933, and the notice of sale provided that confirmation would be sought at the November, 1933, term of the Chancery Court. The report of the sale by the trustee and motion to confirm it were made to the November term of court and a decree thereon was entered, confirming the sale for $1,200.
The decree of confirmation referred to the former decree of the Chancery Court, dated November 5, 1931. After reciting the confirmation of the sale, and investing the title in the purchaser, the court found the net balance due from the proceeds of the sale, and applied that amount as a credit on the indebtedness. Thereupon the court rendered a judgment in favor of J.S. Love, Superintendent, etc., against Roebke, for the amount of the balance due, as ascertained in the decree, with interest at the rate of eight per cent per annum from the date of that decree.
An officer of the Peoples Bank Trust Company testified directly and unequivocally that the foreclosure sale was delayed at the request of Roebke, and on his promise to pay the indebtedness, prior to the time the trustee proceeded to foreclose, and after the rendition of the first decree.
In the meantime the bank had been reopened under the prevailing statute, and taken in charge by its stockholders and officials.
After the 1933 decree no further proceedings with which we are concerned were had until March 14, 1939. Superintendent Love filed a bill in the Chancery Court of Alcorn county, reciting the debt, the confirmation of sale, the decree confirming the sale, and the decree confirming the sale, and the money decree for the balance — alleging that the amount remained due and unpaid.
It was further charged that the said judgment or decree was valid and effective, and that the appellant, Roebke, was asserting that the claim on that judgment was invalid; and prayed for process to be served on Roebke to show cause why the execution should not issue against him to collect the judgment; that if, upon return of execution, a sufficient amount was not collected to pay off the judgment, then that the court render a new judgment for the balance found to be due on the hearing; and prayed for general relief.
Process was served upon the appellant, who appeared and answered the petition, his main contention being that certain statutes of limitation had barred the action; that the judgment of 1933 for the balance due as then final was void, because no new process had been served upon him, and he had not been brought into court; so the judgment entered was void and in violation of the law and the Constitution.
Upon the final hearing the court entered a decree, holding the judgment of 1933 valid, and directing the clerk to issue execution thereon, returnable to the next term of court, and retaining the parties in court for the return of said execution at the next term of court. It recited that a decree for the balance, if any, would be rendered as prayed for in the petition.
The defendant, Roebke, presented an appeal to this Court, his precise contention being that the decree rendered in 1931 is the only valid decree; and that since there was no valid renewal of that decree it is barred by the seven-year statute of limitation, section 2303, Code of 1930. He contends, further, that both the decree rendered in 1931 and in 1933 are barred by chapter 251, Laws of 1934.
Appellant further contends that because the record does not disclose a motion in writing for a deficiency judgment the decree of 1933 is void, insofar as a judgment in personam is rendered against him.
Stripping the arguments in the briefs to what we conceive to be their real meaning, the contention of appellant must be that the decree of 1931 fixed the next term of court in 1932, the date for the hearing of the motion to confirm the sale; and no sale having been effected, and no report having been made to that term of court, thereafter, in the case at bar, the Chancery Court had no further jurisdiction of the person of the appellant; and that a decree in personam could not thereafter be rendered against him without process being served upon him.
The obvious answer to that proposition is that in this state there is no discontinuance of a pending cause by reason of failure to act thereon at a term to which the cause stands continued by operation of law in all aspects. See section 734, Code of 1930. If at the March term, 1932, of that court the trustee had made his report of sale, and this court had entertained jurisdiction to confirm that sale and vest the title in the purchaser, and had entered another decree for the balance then found to be due, that judgment would have been valid, as was very clearly announced in Edgewater Park Co. v. Standard Bond, etc., Co., 162 Miss. 684, 138 So. 811. The former judgment and the later were merged, as declared by this Court. If the matter was pending in the court for final decree, then no further process was necessary to the term of court fixed in the first decree for the date of confirmation and adjusting the decree or judgment. The fact that the deed of trust was not foreclosed at the instance of the appellant, in order that he might have time to save his property by paying the debt, could not possibly be urged as ousting the jurisdiction of the Chancery Court to render a decree at the term, and on the date, when the foreclosure sale of land was confirmed. See Weir v. Field, Executrix, 67 Miss. 292, 7 So. 355; Edgewater Park Co. v. Standard Bond, etc., Co., supra; and the date of the second judgment is the time from which the seven-year statute of limitation begins to run. That time had not expired when the bill for scire facias and renewal of the 1933 decree was filed in this case.
It is further contended that section 466, Code of 1930, is mandatory in its requirement that a motion in writing is jurisdictional, in order to entitle the judgment creditor to a deficiency judgment upon the stated confirmation of the report of sale of any property under a deed of trust. The decree is silent as to whether a motion was made orally, and it is conceded that there was no separate written motion on or prior to that date. We are of opinion that the written motion is entirely unnecessary, and the absence thereof would deprive the judgment debtor of no substantial right; and this being a collateral attack upon a decree regular in form, we must assume that the court acted at the instance of the judgment creditor in rendering the deficiency judgment, and that an oral motion was made therefor at the time the court entered the final decree in 1933.
However, in the case at bar we have set forth the written prayer in the original bill filed therein, which fully apprised the appellant of the purpose and desire of the appellee in the matter. It was an unequivocal prayer for a deficiency judgment upon confirmation of the sale.
We conclude that under the authority of Continental Gin Co. v. Mathers et al., 132 Miss. 821, 96 So. 744, the seven-year statute of limitation begins to run from and after the date of the decree rendered by the Chancery Court in 1933, and that a right of action thereon was not barred by that statute.
The contention that chapter 251, Laws of 1934, wherein a one-year statute of limitation in certain cases is provided for, applies here, is entirely without merit. This act was not approved until April 4, 1934, months after the final decree in this case was entered, in 1933. This statute is as follows: "That in all cases, foreclosure of any deed of trust, mortgage, vendor's lien, or other instrument, no suit or action shall hereafter be commenced or brought upon any installment note, or series of notes of three or more, whether due or not, where said note or notes are secured by mortgage, deed of trust, or otherwise, upon any property, real or personal, unless the same is commenced or brought within one year from the date of the foreclosure or sale of the property pledged as security for said note or notes. Provided, further, that no action shall be commenced or brought upon any such note or notes where such security has heretofore been foreclosed, except such action be brought or commenced within one year from the effective date of this act."
We presume counsel bases has contention upon the last sentence of this act. The obvious and complete answer to the contention is that after the foreclosure, and before passage of this act, the judgment creditor herein had procured a valid judgment, and the case here on appeal is an action based on that judgment, and not on the note.
The authorities on the subject of what constitutes a final judgment for purposes of appeal to this Court have no application to the facts of this case. After the rendition of the first judgment in 1931, due to the recitals therein, the case was pending until the date of the confirmation of sale and entry of final deficiency judgment; during all of which time the appellant was in court by the service of process on him, issued upon the original bill in 1931. After the decree of 1933, if any further judgment or decree was sought to be taken against the appellant, then process was necessary in order to confer any further jurisdiction upon the court. See Continental Gin Co. v. Mathers et al., and Weir v. Field, Ex'x, supra.
Affirmed.