Porter v. Grady

1. Pleading — General and Specific Denials. The specific denials in the replication to the cross complaint in this action are not inconsistent with the general denial; neither do they limit its force or effect. 2. Practice — Motion for Judgment on the Pleadings. When a material fact is put in issue, a motion for judgment on the pleadings should be denied. 3. Practice in Eoreclosure Oases. It is error to dismiss a cross complaint in an action to foreclose a mortgage when it appears that the defendant pleading it is entitled to a second lien upon the premises. 4. Jury in Equity Cases. The court has a right to call a jury to answer a question of fact in a chancery case, but the verdict, being merely advisory, may be disregarded, and the court, upon the evidence produced, may decide the issue of fact for itself.

Hrror to the County Court of Yuma County. J. Douglas Grady, the defendant in error, brought an action to foreclose a mortgage upon certain real estate, executed by one Wickliff Newell on the 29th day of November, 1887, and given to secure a promissory nóte of even date therewith for the sum of $535, payable May 29,1888. This mortgage was recorded on the 29th day of December, 1887. The plaintiff in error, James R. Porter, was made a party defendant, and answered by a general denial and filed a cross complaint setting forth a mortgage upon the same property, executed by said Newell on the 26th of November, 1886, to secure a certain promissory note of even date therewith, for the sum of $319, payable on or before January 1, 1888. This mortgage was recorded on the 10th day of March, 1888. He further averred: “ That at date prior to the said mortgage in the said complaint mentioned, the said defendant Newell advised the said plaintiff of the giving of the said mortgage by the defendant Newell to the said defendant James R. Porter. That at the said time of the giving of the said mortgage to him, the said 'plaintiff, as in the complaint is alleged, the said plaintiff well knew of the giving of the said mortgage to the said defendant Porter.” . For replication to this cross complaint plaintiff filed general denial, and specifically denied the allegation that at' the time of the execution and delivery'of plaintiff’s mortgage Newell advised him of the existence of the note and mortgage described in-the cross complaint; and also specifically denied that he then or-theretofore had knowledge or means of knowledge from any of said defendants, or from any other source whatever, of said mortgage. Newell filed no answer to Porter’s cross complaint. Upon these pleadings Porter moved for judgment, which was denied. The cause coming on for trial, the court of its own motion summoned a jmy of twelve to try the question of fact, whether Grady, at the time of taking his mortgage, had knowledge of the existence of the mortgage theretofore given to Porter. The jury refused to deliver up the verdict until their fees had been paid. Both parties refusing to pay the fees, the jury was discharged, and the court, upon the evidence introduced, found that the plaintiff did not have knowledge of the existence of the Porter mortgage at the time of the execution and delivery of the mortgage to him, and ordered “ that all costs occasioned by the said James It. Porter’s cross bill herein be taxed to the said James R. Porter, including the jury fee herein, and that the cross bill be dismissed.” The journal entry further recites that: “ This cause coming on to be heard as between the said J. Douglas Grady, plaintiff herein, and Wickliff Newell, defendant, * * * the defendant Wickliff Newell made default and the court * * * orders that judgment be rendered against Wickliff Newell and in favor of J. Douglas Grady for the sum of $635.91 and attorneys’ fees taxed at $80.25 and all costs, * * * and that the mortgage herein foreclosed be decreed to be the prior and superior lien, * * * and the property sold, * ® * and that special execution issue for the sale of said property and that general execution issue for any balance.