Exley v. Berryhill , 36 Minn. 117 ( 1886 )

Vanderburgh, J.

This case involves three appeals:

1. An appeal by defendants from an order denying their motion to strike out one or more causes of' action set up in the complaint, on the ground that the pleading was double. This objection is not that there is a misjoinder of several causes of action, which constitutes a special ground of demurrer under Gen. St. 1878, c. 66, § 92, but the motion is made under section 107, same chapter, to require the pleading to be corrected by striking out certain portions thereof for irregularity or informality in the statement of the causes of action. Bliss, Code PL § 290. The motion was denied by the trial court, and the-order is not appealable because it does not involve the merits. Rice v. First Div. St. P. & P. R. Co., 24 Minn. 447.

2. The defendants also appeal from the order denying their application for leave to answer after default. The action was commenced in February, 1885. A demurrer was interposed to the complaint by the defendants; and afterwards, in March, 1886, an amended complaint was filed, from which it appears that the plaintiff, in July, 1882, executed a deed, absolute in form, to the defendant Berryhill of certain real estate which it was understood was to stand as security for a loan, and thereafter also executed certain mortgages to him covering the same real estate and a large amount of persona] property, to secure the same loan, including money previously advanced by the defendant Berryhill-, amounting in all, as plaintiff alleges, to a sum not exceeding $3,100. It is alleged that defendant realized $600 from lots sold by him under the first deed, and that prior to November, 1883, plaintiff had paid, on account of his indebtedness to the defendants, the sum ofr$650, and that in December, 1884, the defendant Berryhill caused to be sold personal property, included in the chattel mortgage held by him, worth $3,500, for which he has failed to render any account, except that the net proceeds thereof were $1,175. It is also shown by the supplemental complaint filed in this action that Berryhill caused the real-estate mortgage to be foreclosed by a sale of the mortgaged premises on the 14th day of February, 1885, for the sum of $2,441.50, and that he claims an absolute title thereto under such sale, the time of redemption having expired, subject, however, to a prior mortgage held by the West St. Paul Building Society, which was foreclosed by a sale of the same premises on the loth day of June, 1885, at the price of $2,889.82, and that the plaintiffs were destitute of other property upon which to raise money to redeem from the last-mentioned sale. It is further alleged that the mortgages in question were usurious and void. The plaintiffs demand an accounting and other appropriate relief. The defendants made the motion to strike out portions of the amended complaint to which we have referred, and upon its denial renewed it in another form. Meanwhile the time for answering had expired, and the defendants were in default, and thereafter the application for leave'to answer under consideration was made. Upon the hearing counter-affidavits were interposed, among other things charging want of good faith, and an attempt to delay the proceedings by defendants, to the injury of the plaintiffs; and thereupon the court refused to' grant defendants’ application except upon the terms of their complying with «certain conditions which the court deemed essential for the protection of both parties, and in order to prevent the plaintiffs’ rights from being sacrificed by the delay.

From the record, including plaintiffs’ affidavits, it was made to appear to the satisfaction of the court that the title to the real estate in controversy would soon pass absolutely under the prior mortgage; that defendants had interposed several dilatory motions, the effect of which was to delay the case, and that they had previously threatened so to do for the purpose of delay; that upon an accounting defendants’ rights and equities could be fully protected, and that plaintiffs had repeatedly offered and consented that defendants should receive and be allowed for all sums actually advanced by them, with interest at 10 per cent., and $200 besides, if defendants would consent to an accounting. Under these circumstances, we are of the opinion that it was not an abuse of discretion to refuse to grant defendants’ application, and still less to annex the equitable conditions named by the court. From the brief reference to the facts of the ease we have made, it is apparent that defendants’ application^ not such as to commend itself to the special favor of the court. It was at their option to refuse their assent to such conditions, and they did so refuse. The motion, therefore, stands as if denied. The order of the court is reviewable upon appeal, but can only be reversed for an abuse of discretion. The conditions required by the court were not unreasonable, and, under the peculiar circumstances of the case, it was the only way in which the rights of the parties could be protected pending the proceedings, while working no injury to either. The appointment of a receiver could be avoided by defendants’ consenting to redeem from the previous sale; and, if such redemption was not made, the property would be lost to both parties. In the absence of such consent, some such provision would seem to be a necessity if an answer was permitted and the trial delayed. A receiver for the special purpose indicated would be a trustee of an express trust, and entirely under the control of the court, and in requiring such condition the court did not transcend the bounds of its discretion. Conditional orders in granting applications, addressed to the discretion of the court, are not infrequent in practice. In special cases a party is forbidden to plead a.certain defence, or directed to submit to a reference or waive a jury, or to accept short notice of trial, or to commence an action, etc. 4 Wait, Pr. 608; 1 Wait, Pr. 464; McCall v. McCall, 54 N. Y. 541, 548.

3. The defendants also appeal from the judgment. The plaintiffs move to dismiss the appeal because prematurely taken. The judgment or decree was signed by the judge, and dated June 12, 1886, but was filed and entered, as the records show, June 15,‘1886. The appeal, in such eases, may be taken at any time within six months from the entry of the judgment. Gen. St. 1878, c. 86, § 6. The judgment must be made a matter of record in order to limit the time for taking the appeal, and the time does not commence to run until the entry thereof. Humphrey v. Havens, 9 Minn. 301, (318,) 334, (350;) Hostetter v. Alexander, 22 Minn. 559. An appeal taken before the order for judgment is filed, or any record thereof is made, is premature, and should be dismissed.

The first and third appeals are dismissed, and in the second the order is affirmed.