Thatcher v. Haun , 12 Iowa 303 ( 1861 )

Wright, J.

The controversy, as presented in the court below ana in this, is between the complainant and the mortgagor Haun. And the first question made is, whether there was error in entering the decree pro confesso and refusing respondent leave to answer, under the circumstances detailed in the record. '

We are clearly of the opinion that sufficient excuse was shown for not answering within the twenty days required by the rule entered at the September Term, 1858. And we are equally clear, at the same time, that there was no error in the decree in this respect, nor in the refusal to give further time for answering. In the first place, taking all the affidavits for and against the excuse shown and the leave asked, and there is certainly no satisfactory cause shown for not answering after the expiration of the twenty days, and before the first day of the next term in April, in Cedar county. By thus answering, respondents could have saved their default, and this it was their duty to do. Where a party is ruled to answer by a day named, and for his noncompliance has a good and valid excuse, he is not thereby released from answering after that time and before the next term, (if the rule day extends into vacation,) unless for such continued default he has sufficient justification.

In the second place, we are not satisfied that there was any abuse of the discretion lodged with the court below, in entering the default for not answering under the short rule, taken at the April Term, 1859, or at least such abuse as to justify our interference.

Then again, and finally on this subject, respondents, in their motions for time to answer, fail to make any sufficient averment of merits, or any showing to lead to the conclusion that substantial justice required such continuance. They moved for time to answer beyond the term; then to answer during rhe term, and then after the default was entered to set it aside, and it was not until after the default was entered and the decree rendered that there was an attempt at showing merits. Still no answer accompanied the affidavit, nor any sufficient excuse for not presenting the same. Upon the whole, addressed as such applications are to the sound discretion of the chancellor, and in view of the rule, that relief should never be granted where the default is the consequence of the party’s own neglect, and the further one, that an answer should have accompanied the application, we conclude that the' default was properly entered. (Harrison v. Kramer, 3 Iowa 543.)

II. It is next claimed that there is an inconsistency in the object and purpose of the original and amended bill. So much so, that it was improper to grant any relief thereon to complainant. The original bill asked a foreclosure of the mortgage, making no reference to the proceedings under the sheriff’s sale of March 6th, 1858. The amended bill set forth these proceedings : the assignment by Millilcen and his agreement to convey; the mistake in the description; the claim by respondents of the invalidity of said proceedings; and then prays that the title may be quieted, the mistake corrected, tbe equity of respondents to the premises cut off; and that if this sale shall be held invalid and complainant is not entitled to this relief, then that an account may be taken, and that he may have a decree of foreclosure in the usual form &c.

To this form of the bill we are unable to see any just ground of objection. In all its parts it refers to the same mortgage. One part of the prayer is for a foreclosure and the other for a specific performance and to correct a mistake. The relief sought in either case, is of an equitable nature. It is not to be denied that it would have been better for the pleader to have set out the foreclosure proceedings by the sheriff in his original bill, following this up with averments showing his title, or the agreement with Milliken, the alleged mistake; the claim of title by the other respondents, praying the correction, the quieting of his tittle, and then the alternative for a foreclosure, if said proceedings by the sheriff were invalid. But while this would have been the better course, the same end is substantially attained in the course pursued. If treated • as a bill for the specific performance and reforming of the contract between complainant and Milliken, improper parties, as respondents, were brought in, this might become material in taxing costs. It must be borne in mind, however, that the bill charges, that all the respondents, naming them, claim or pretend to have some interest in said property, or in some part of it, and the prayer is, that complainant’s title may be quieted. To this charge there is no response. The bill is taken as confessed and true in this respect as in all others. In this view therefore they were properly made parties and liable for costs.

As against Milliken, the court clearly had jurisdiction, treating the bill simply as one for specific performance. As against Iíaun and all the other respondents, the jurisdiction was alike clear, treating it as a foreclosure proceeding. Having jurisdiction for either or both purposes, therefore, the chancellor most manifestly had the right to retain the bill for complete relief, or such as would be consistent with, not to exceed, the case made. And having this jurisdiction, if it was found that complainant was entitled to equitable relief; it was competent to award such process as would execute the relief granted. Thus being entitled to the premises in equity, the chancellor could decree their surrender, without leaving him to his common law writ. In Whipple v. Farrar, 3 Mich. 436, it is said: ‘‘Decreeing the surrender of possession of lands in a proper case, is an ordinary and familiar exercise of the power of the court (of equity,) and the execution of such a decree is as easy and .simple as the execution of a judgment at law for possession in an action of ejectment.”

III. It is next insisted that the sale by the sheriff was established by the court, without any allegation or proof of its regularity or validity. If the allegations in this respect are sufficient, the proof is immaterial, for the bill being confessed, proof was not necessary. Without reciting this part of the bill, in detail, we unite in the opinion, that guided by the principles recognized in Harrison v. Kramer, supra, it contains all that is essential or material to form a predicate for the decree.

IV. The last and most important point presented for our consideration is, that the sale by the sheriff was invalid and could give no right to complainant, or Milliken under whom he claims, for the reason that the law authorizing it was repealed before said sale was made. And while it is pressed with much zeal and a corresponding ability, to our minds it is of ea.sy disposition. To understand the very point made in argument, reference to the statutes relied upon becomes important.

The sale by the sheriff was made under §§ 2071 to 2083, chapter 118 of the Code of 1851, known as the “ foreclosure by notice and sale,” or “ short foreclosure.” On the 25th of February, 1858, an act was passed which provided, that “ hereafter no mortgage of real estate shall be foreclosed in any other manner than by civil action in the proper court &c.” And it is now claimed that to this act there was no saving clause, in relation to any pending proceedings, and that as a consequence the provisions of the Code except as to those transactions passed and closed, must be considered as if they never existed ; that this transaction or proceeding was not thus passed and closed, and therefore not saved.

The general principle relied upon, independent of some statutory rule, is not controverted, that when a statute is repealed it must be considered as if it never existed, except with reference to such parts as are saved by the repealing statute. And equally well settled is the doctrine, that though a party may have instituted his suit, and the same be pending at the time of the repeal, the jurisdiction is gone, without some saving clause. In the case before us, however, the act of 1858 provided that it should take effect from and after its publication in certain newspapers, under § 26 of article 3 of the Constitution. It is shown by the proper certificate of the Secretary of State that the last publication was made on the 27th of February, 1858. .The Code of 1851, § 21, provides, that “ all acts which are to take effect by publication in the newspapers shall be published in two papers, and take effect on the twentieth day after the date of the last publication.”

The word “ hereafter,” as used in the act of February 25th, 1858, has reference to the date of the taking effect of the act, and not the date of its passage or approval. Charless & Blow v. Lamberson, 1 Iowa 435 ; Bennett v. Bernard, 6 Iowa 82. This being so, it could not operate upon this sale, or impair its validity, (for by § 21, just quoted, it did not take effect until twenty days after February 27th, and the sale was made March 6,1858,) unless the section directing that it should take effect from and after its publication shall be construed as repealing the general rule given in said § 21. And upon no principle governing the construction of statutes can this be successfully maintained. The provision of the Code is a general statute. It gives the general rule. It is not declared, “ that unless otherwise provided, acts taking effect by publication shall be in force on the twentieth day &c,” but the language is broad, sweeping and general, that all acts to be thus published shall take effect at that time. To give the act of 1858 the effect claimed would be to repeal a general statute, by one special in its nature, by implication. Not only so, but such a construction would destroy the former statute without necessity. Both may have force and meaning, and both stand: if so, it is our duty to so construe them. Then again, courts never favor repeals by implication. Guided by these well settled principles, we are clearly of the opinion that the repealing act had not taken effect at the time of this sale, and as a consequence that it does not govern it.

Having thus disposed of all the questions made by counsel, we are brought to the conclusion that the decree below must bo

Affirmed.