Olson v. Paul

The action was brought to have a deed of land, absolute on its face, executed by the plaintiff to defendant, adjudged a mortgage, and to have the same canceled, for the reason that the condition upon which it was given had been fully performed by the plaintiff. The.answer admits the deed was given as security for the performance of certain conditions by the plaintiff, denies performance, and contains a counterclaim for its foreclosure as a mortgage. When the cause was called for trial, the plaintiff discontinued his action. The cause was then tried on the counterclaim and *31reply, and resulted in a judgment for defendant of foreclosure and sale. Notice of pendency of the action was filed in the office of the register of deeds, by the defendant, more than twenty days before judgment, but the answer was not filed in the court until the judgment was entered. The plaintiff appeals from the foreclosure judgment. Counsel for defendant admits that the filing of notice of the pendency of the action was ineffectual because the answer was not filed twenty days before judgment, and hence very properly concedes that the judgment must be reversed for that reason. See R. S., p. 823, sec. 3187.

Counsel for plaintiff asks that the cause be remanded for a new trial. On a proper showing the circuit court is at liberty to grant a new trial, but this court is not sufficiently advised in the premises to order one.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for further proceedings according to law.