Walker v. Fitz , 2 Ohio Law. Abs. 774 ( 1924 )

FUNK, P. J.

Epitomized Opinion

Published Only in Ohio Daw Abstract

Action to recover upon promissory note and for foreclosure of mortgage securing same Fitz executed note and mortgage to' Fortune. Fortune transferred to Ingersoll and Ingersoll to Walker. Fitz failed to pay any installments upon note. Fortune and Ingersoll defend, alleging (1) failure to present note and mortgage when installments became due. (2) extending time of payment, and (3) increasing rate of interest without knowledge or consent of endorsers.

Although the note shows two endorsements of interest, nothing in the record shows when such interest was paid. The endorsers did not know of the change in interest rate or extension of time of payment.

Judgment by default was taken against Fitz on June 1, 1923, for the sum of $4,702.50 and decree of foreclosure entered. The property was sold and proceeds distributed without objection by endorsers. The property was sold for $3,225. Afterwards the liability of the endorsers for the balance due, $1,647.71, was 'heard. On appeal the court of appeals held:

1. A judgment upon a note in an action at law and decree for foreclosure is an action in equity, hence, the former is not appealable.

' Attorneys — Helen T. Acs, Lorain, for Walker; Robert L. Walden, Wellington, for Fitz et al.

(Odell v. Firestone, Medina Co. Appeals, May 14, 1923).

2. No notice of presentment and nonpayment of various installments of interest or principal was given prior to commencement of this action as provided by 8207, 8208, 8209 GC. No notice Was given by Walker of her election to exercise her option to declare entire debt due, none of which are presentment or demand for payment and notice of nonpayment necessary to hold indorser on note.