Hoppin v. First National Bank , 25 Nev. 84 ( 1899 )

The facts sufficiently appear in the opinion. The respondent, at the proper time, interposed a motion to discharge from the record the statement on motion for a new trial, assigning as a reason therefor that the notice of motion for a new trial was not given by the attorney of record of the appellant. The record discloses the fact that the original answer of the appellant was signed by W. S. Bonnifield, Esq., as its attorney. Thereafter the appellant filed certain amendments to its answer, signed by Robert M. Clarke and H. Warren, Esqs., as its attorneys. The decree recites that Clarke and Warren appeared as the attorneys for appellant. The notice of motion for new trial and the statement on motion for a new trial were signed by Clark and Warren as the attorneys for the appellant, and stipulations were entered into by and between the respondent's attorney and Clarke and Warren as the attorneys for the appellant, respecting the suit. In the absence of any notice or order of substitution, where the record discloses the fact that certain attorneys have been acting for a party all through the case, and have been recognized as such by the court and counsel of the adverse party, it cannot be said that they are not attorneys of record in the action. (Livermore v. Webb,56 Cal. 489; Roussin v. Stewart,33 Cal. 208; 2 Enc. Pl. Prac. 636.)

The cases cited by the respondent in support of his contention show a state of facts different from the one shown in the record in the case at bar, and, in a proper case, would apply.

The respondent also asks us to strike out of the record certain affidavits in support of the motion for new trial, offered under the fourth subdivision of section 3217 of the General Statutes. This motion must prevail. The affidavits are not shown, by the indorsement of the judge or clerk, to have been read or referred to on the hearing of the motion, as required by the express terms of that section, and are, therefore, no part of the record. (Gen. Stats. 3219;Dean v. Pritchard, 9 Nev. 232; AlbionCon. M. Co. v. Richmond M. Co., 19 Nev. 225,8 Pac. 480.)

We do not see how, under the provisions of this act, this requirement could be avoided by incorporating the affidavits in the body of the statement on motion for new trial, as such procedure is unauthorized, and the affidavits were not properly a part of, and could not be properly made a part of, such statement.

We come now to a discussion of the merits made upon the record after the elimination of the affidavits. The action was brought by the respondent to recover a judgment of foreclosure against the defendant Thaddeus L. Hoppin,et al., of a certain mortgage upon real estate in Humboldt county. The mortgage was made and executed by Thaddeus L. Hoppin and Luella V. Hoppin to secure the payment of a certain note for $10,000, of date January 27, 1891. The mortgage bears date of January 28, 1891, and was recorded on the 7th day of March, 1894, in Humboldt county. Luella V. Hoppin was not made a party to the action. The appellant, the First National Bank of Winnemucca, set up by answer an indebtedness due it, secured by a deed executed as a mortgage upon the same real estate by T. L. Hoppin Co., a co-partnership, claimed to consist of Thaddeus L. and Luella V. Hoppin.

It is also claimed by the answer that the real estate was the property of the copartnership, and that the indebtedness was copartnership indebtedness. The other defendants to the action, upon their answers, and by the decree of the court, are eliminated from the case. Upon the trial of the issues made by the complaint and the answer of the appellant, the court decreed a foreclosure of a mortgage of the respondent, and the sale of the mortgaged property to satisfy the mortgage debt, together with interest, attorneys' fees, and costs, as against the interest of the defendant Thaddeus L. Hoppin in and to said lands; and out of any surplus arising from such sale after the payments are made as aforesaid there should be paid to the appellant the amount of its debt, together with interest and costs. The appellant interposed a motion for a new trial, which was overruled, and from the judgment and decree aforesaid, and the order denying the motion for a new trial, this appeal has been taken.

A number of errors have been assigned for the reversal of the judgment and order. The statement on motion for a new trial discloses, among other things, that upon the trial of the issues the respondent admitted that Luella V. Hoppin, one of the mortgagors in the respondent's mortgage, and one of the joint and several makers of the note secured thereby, and a member of the copartnership of T. L. Hoppin Co., had made a deed to the respondent of her entire interest in the mortgaged premises in satisfaction of the mortgage. It is claimed, and assigned as one of the many errors relied upon by appellant, that, in view of this admission, it was prejudicial error of the court in rendering its decree against the interest of the defendant Thaddeus L. Hoppin for the whole sum due upon the note and mortgage.

We are unable to understand under what theory of the law the trial court disregarded this admission, so broad and far-reaching in its effect. Luella V. Hoppin was not made a party to the action. No judgment was sought against her on the note, or against her interest in the property under the proceedings to foreclose the mortgage.

If the admission in terms were true, then the mortgage was discharged and satisfied, not in part, and as to the interest of said Luella V., but in toto, and left the property primarily subject to appellant's mortgage. But if, under a liberal construction of the language used in the statement, it was intended that the conveyance so made should operate only as a discharge and satisfaction of the amount due from Luella V. upon the note and mortgage, then, also, it was error to decree the entire mortgage debt to be a primary lien upon the interest of Thaddeus L. Hoppin as against the appellant's mortgage, as no such sum was due upon the note or the mortgage. While, under section 3037 of the General Statutes, it might be optional with the respondent to make Luella V. Hoppin a party, yet the release of Luella V. Hoppin, shown by the admission in the statement, operated to release her proportion of the debt. For authority in support of this proposition we need not look beyond the provisions of our statute.

It is expressly provided that any one of two or more joint debtors or parties jointly, or jointly and severally, bound by any contract or judgment, may be released from his, her, or its liability upon such contract or judgment, by the creditor or creditors, and such release shall not operate, nor be held to operate, in law, as a release to the other debtor or debtors upon such contract or judgment, except as to the released debtor's portion of such liability or debt estimated upon the basis of the number of such debtors, but such release shall operate only as a release of all liability of such debtor to the creditor in such contract or judgment, and as a credit upon the same of such proportionate sum as herein provided. There are further provisions of the same act relating to the method of procedure against the parties not released for their proportionate part of the unsatisfied debt. (Gen. Stats. 4931-4933, incl.)

It will thus be seen that under this statute the conveyance by Luella V. Hoppin to the respondent of her interest in the mortgaged premises in satisfaction thereof operated as a release of her proportionate part of the mortgage debt, and a decree of the court by which the interest of Thaddeus L. Hoppin was ordered sold for the payment of the entire mortgage debt is erroneous.

Other questions are argued in support of this appeal involving the rights of the appellant as a creditor of the firm of T. L. Hoppin Co., one of which presents the question of the primary liability of the mortgaged property for the payment of the appellant's claim as a creditor of said firm as against the rights of the respondent; but we do not deem it necessary to pass upon this question, because of doubt as to the correctness of any conclusion growing out of the unsatisfactory condition of the record.

As such questions will likely be settled satisfactorily upon a retrial of the action, the judgment and order appealed from will be reversed for the error above assigned.

MASSEY, J.: I concur.

BONNIFIELD, C. J., did not participate.