Ornn v. Merchants National Bank

1. Service of Summons; Jurisdiction; Findings; Presumption. Where the court below finds that a sufficient service of summons was had upon the defendant, and renders a judgment against him, and there is nothing in the record brought to the supreme court which shows that no such service was in fact had, or that the defendant did not make a voluntary appearance in the case, and it does not appear that the whole of the record has been brought to the supreme court, held, that although it may not appear affirmatively from the record brought to the supreme court, except as above stated, that any such service or appearance was in fact made, still it will not be presumed from such a record, for the purpose of reversing the judgment of the court below, that the judgment was rendered without a sufficient service of summons or appearance. 2. National Banking Law ; Mortgage to National Bank. The defendant owed a large sum of money to a National Bank. To partially secure the payment thereof he gave a mortgage to the bank on some property owned by him in Chicago, Illinois. There was a prior lien of §2,000 on the Chicago.property, which the defendant agreed to pay. Five hundred dollars of the same became due, and the bank, in order to save and protect its own lien on said Chicago property, and at the request of the defendant, paid said sum of §500, and .then took the note and mortgage now sued on for that amount on property situated in Crawford county, Kansas: Held, That the taking of the last-mentioned mortgage is not a violation of the National Banking Law, and that the mortgage is valid.

Error from Crawford District Court. Foreclosure of mortgage, brought by the Merchants National Banh of Fort Scott, as plaintiff, against Lends Ornn and his wife. The mortgage was executed,by said defendants to secure a note given by said Lewis Ornn alone. The note and mortgage were executed and dated July 19th 1873. The Mo. River, Fort Scott & Gulf Railroad Co. was joined as a codefendant, as having some interest in or claim to the mortgaged premises. Trial by the court, without a jury, at the October Term 1874. The journal entry of the trial, showing the findings of fact and conclusions of law, is as follows: {Title,.) “This cause this day came on by consent. The plaintiff appeared by Playter & Pursel, its attorneys; the Mo. River, Ft. Scott & Gulf Railroad Co. by C. W. Blair, and the defendant Abbie E. Ornn by her counsel McComas & McKeighan. The defendant Lewis Ornn not appearing, but being in default. Whereupon the court finds as to Lewis Ornn, that he is indebted to plaintiff in the sum of $553.55 on his note as set forth in plaintiff’s petition, and that said indebtedness was secured by mortgage signed by said Lewis Ornn and Abbie E. Ornn his wife on the property described in plaintiff’s petition; and that the sum of $50 is due thereon as attorney’s fee for foreclosure of said mortgage. “And as to defendant the Mo. River, Fort Scott & Gulf Railroad Co. the court finds, that the legal title to the lands described in said mortgage is in the said defendant the Mo. River, Fort Scott & Gulf Railroad Co., and that therejs due said company as purchase-money on said land the sum of $36.30 with seven per cent, interest from July 16th 1874, which is a first lien on said land. “And upon the issues submitted between the plaintiff and .the defendant Abbie E. Ornn, the court, after hearing the evidence and argument of counsel, and being fully satisfied in the premises, upon request doth make the following special findings of fact: “ 1st. That at the time of the execution of the note and mortgage stated in this case, the defendant Lewis Ornn owed the plaintiff about $4,000; that $2,500 of this sum was secured by a mortgage upon his mill at Cherokee, Crawford county, and the remaining $1,500 was secured by a deed conveying to the plaintiff certain property in the city of Chicago, Illinois, both of which last-mentioned securities were taken to secure indebtedness existing against Ornn prior to their being taken by plaintiff. “ 2d. That this Chicago property was originally owned by one Walker, who sold it to one Watson, who sold it to defendant Lewis Ornn. The property was valued at about $4,000, and Watson executed to Walker a deed of trust for $2,000 of the purchase-money. This deed of trust was an existing lien on the property at the time it was conveyed by Watson to Lewis Ornn, and at the time he conveyed it to plaintiff, and which said existing lien Ornn agreed to pay off when due, and protect the second lien held by plaintiff of $1,500. “ 3d. That after the Chicago property was conveyed to the plaintiff, $500 of the indebtedness upon said deed of trust became due and payable, and the plaintiff, upon the request of Lewis Ornn, and in order to protect its lien of $1,500 from being lost, paid it; and the note and mortgage in suit here were given for that $500, but were given before said payment was made; and that the plaintiff, after taking this note and mortgage, sent drafts to Chicago to make payment of said $500. “4th. That the property described in the mortgage in suit here, at the time of the making of the note and mortgage, was the homestead of the defendants Lewis Ornn and his wife Abbie E. Ornn. “ 5th. That the plaintiff is a National Bank. “And as a conclusion of law, the court finds that this mortgage is valid under the National Banking Law.” Judgment was given foreclosing said mortgage, and for a sale of the mortgaged premises, the court ordering and directing that from the proceeds of sale there be paid, first, the costs of suit and sale; second, the amount due to the railroad company; and third, the amount due to the plaintiff. From this judgment Ornn and wife appeal, and bring the case here on error. contended that there was no service on Lewis Ornn, and no appearance by him, and that, therefore the judgment as to him was coram non judiee, and void. Also, that the mortgage was given for debt concurrently contracted, and therefore void, as being prohibited by the act of congress.