Fratt v. Walk

This is an action brought in the District Court of Yellowstone County to foreclose a mortgage on certain real estate, executed to secure a note made by appellants to respondent, on the 27th of December, 1886, and due three-years after date, for twelve thousand five hundred dollars, interest payable semi-annually. The appellants bring this case into this court upon the judgment roll, and allege as grounds of error that the complaint does not state facts sufficient to constitute a cause of action; that the facts, and those only which constitute a cause of action, must be stated; that the complaint must allege that the debt was due and owing at the time suit was commenced; that the complaint does not allege a demand made upon defendants for the money paid for insurance ; that a complaint which alleges a promise without alleging a breach, or which alleges a breach without alleging a promise, does not constitute a cause of action; that a bad complaint will not support a judgment; and that the judgment is void for the reason that it bears upon its face an illegal rate of interest. By reference to the transcript it appears that not one of the objections made by counsel for appellants is sustained. The complaint sets forth a cause of action upon the note and mortgage in due form; the appellants voluntarily withdrew their demurrer, and allowed judgment to go against them by default. The decree of foreclosure directs the sheriff to sell the property and pay off the note of respondent, allowing him interest at the rate of twelve per cent per annum. This was in accordance with the note, which provided that it should bear that rate until paid. The land has been sold, and there was a judgment over for the remainder not paid by the proceeds of sale. This judgment bears ten per cent interest. The mortgage provides that the note shall be due and payable when there shall be a default in the payment of interest for thirty days, and the complaint alleges that such default existed for eleven months before this *298action was commenced. The complaint also shows that the appellants agreed in their mortgage that respondent should insure the premises, and that they would pay him one per cent per month interest on the same, and the complaint alleges that he has done this to the amount of $176.85. The law on the subject of the requisites for good pleading laid down in the brief of appellants’ counsel is entirely correct, and would be available for his clients if they had a case to which it was applicable. There is no merit in this appeal, and it is dismissed at the cost of appellants.

Judgment affirmed.