Vincent v. Garland

[726]

TURRENTINE, J., pro tem.

Defendants William J. Garland et nx. mortgaged certain real property to Grover T. Garland. Thereafter, mortgagors conveyed the property to plaintiff, Marcella A. Vincent, subject to the mortgage. The mortgage becoming due and unpaid, the mortgagee, Grover T. Garland, instituted an action to foreclose the mortgage and in the action Grover T. Garland was plaintiff and William J. Garland et ux., the mortgagors, and Marcella A. Vincent, the grantee of the mortgagors and plaintiff herein, were made defendants. After filing suit and duly serving the defendants, but before judgment, the mortgagor William J. Garland paid the sum due on said mortgage to Grover T. Garland whereon the action was dismissed as to William J. Garland et ux., and the action was continued in the name of Grover T. Garland pursuant to agreement between Grover T. Garland and William J. Garland. The foreclosure decree was entered October 3, 1931. November 2, 1931, the sheriff, pursuant to the decree of foreclosure, sold the property to Grover T. Garland. This was done on the promise of Grover T. Garland that he would purchase the property for William J. Garland. Plaintiff herein brought this action to quiet her title to the property covered by said mortgage against the defendants shortly prior to the expiration date of the equity of redemption. The lower court entered its decree that she take nothing by virtue of this action and that she has no right, title, interest or estate in the property covered by said mortgage. Prom such judgment plaintiff appeals.

Bespondent objects to the jurisdiction of this court to entertain the appeal. The judgment Herein was made on stipulation as to the facts. After entry of judgment the plaintiff duly filed notice of intention to move for a new trial and made his motion, which was denied. Notice of appeal was served and filed within 30 days after denial of the motion for new trial, but 61 days after notice of entry of judgment. Bespondents’ contention is that as the facts were all stipulated there could be no new trial and the motion for new trial was a nullity; that the appeal must be perfected within 60 days from entry of judgment, and as it was not the appeal is ineffectual. If respondents ’ contention that the trial court could not properly grant a new trial because all of the facts were stipulated be sound it does not follow that the appeal

[727]