Wheeler v. Wheeler

Stayton, Associate Justice.

The action of the court below, in refusing to consider the motion to quash the writ of sequestration, was erroneous. Motions of that kind need not be filed, as pleas to the jurisdiction over the person, or other dilatory pleas, before pleas to the merits, but may be filed and acted upon at any time before the case is disposed of. The motion to quash the writ of sequestration should have been heard and sustained.

There is nothing in the pleadings of the plaintiff which can be construed as an averment of ownership in him of the real estate of which the judgment declares him to be the true owner, unless such real estate is embraced in the agreement of date April 18, 1884. The action was brought to recover the property that may be embraced in that agreement, as well as the sum claimed to be due to the plaintiff; and the prayer is for judgment for the property, and that plaintiff be quieted in his title to the real estate named in the defendant’s answer. This last relief is prayed, however, only in the event that the court should be of the opinion that the agreement of April 18, 1884, was not intended as a mortgage. In case the court should be of the opinion that the agreement was a mortgage, then the prayer is for foreclosure.

The court, from the judgment rendered, evidently found that the instrument was a mortgage, for it foreclosed a lien on the personal property covered by it. In that event, there being no averment of ownership of the real estate in the plaintiff, and no prayer to have his title thereto quieted, there was no authority to render the judgment quieting the plaintiff’s title to the lots and tract of land.

The objection to the evidence bearing upon the question of the plaintiff’s title to some of the land named in the judgment, should have been sustained, for there were no pleadings which presented an issue to which such evidence was appropriate. The pleadings and judgment present irregularities which are difficult to understand, but the entire record shows that the court below passed upon matters not fairly before it by the pleadings, and gave relief for which there was no prayer.

The judgment will be reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered February 26, 1886.]