Bonestell v. Bowie

GRAY, C.

Appeal from a judgment and from an order denying defendants’ motion for a new trial.

This is an action on a promissory note and to foreclose a mortgage given to secure the payment of the same. The original complaint was filed February 24, 1896. The note sued on was dated February 11, 1892, and was due sixty days after date.

1. The first point urged on appeal is directed to the action of the court in overruling the demurrer to the third amended complaint. Three amended complaints were filed in the ease, and the first allegation of each of them, as well as of the original complaint, was as follows: “That on the eleventh day of February, 1892, the defendant, W. A. Bowie, executed to plaintiff a promissory note in the words and figures following, to wit.” And then follows a copy of the note upon which the action is based, the same being identical in the original and all of the amended complaints. Beyond any question the third amended complaint, filed October 7, 1896, upon which the action was tried, stated the same cause of action as the original and other amended complaints. It is equally beyond question that the basis of the action, as set forth in the third amended complaint, was the original note alleged to have been executed

[513]

.February 11, 1892. There was but one note in the ease executed on that date, so that it is not possible to construe the complaint, or any amended complaint, as being based on any copy or renewal of that note. The third amended complaint contains the allegations usual in a suit brought to foreclose a mortgage, and also some allegations of evidentiary matter which may he treated as surplusage. Of this latter class are the allegations concerning the delivery by mistake of the original note to defendant and the execution of a series or succession of notes in renewal of the original after it became due, and also the execution of a new note outside of said series which was substantially a copy of the original and intended to take the place of it after said original had been delivered up by mistake as aforesaid. These allegations could have been omitted from the complaint to the improvement thereof as a pleading; and yet they did not render it amenable to any objection included in the demurrer to the third amended complaint. This complaint stated a cause of action in foreclosure, and did not state, or attempt to state, any cause of action for the correction of a mistake. There was a distinct allegation of nonpayment of the live hundred dollars evidenced by the note first set out in the complaint, and which the mortgage was given to secure, and it was entirely unnecessary to allege nonpayment of any subsequent note or to make any other reference thereto. The complaint was drawn oh the theory that there was but one indebtedness secured by the mortgage or represented by any or all of the notes, and to allege the nonpayment of this once was sufficient. It is alleged in the complaint that the note in suit had been "by mistake surrendered to one of the defendants and marked paid,” but it does not necessarily follow from this allegation that either the note or mortgage was in fact paid or extinguished. The allegation of nonpayment with the other allegations of the complaint show a present subsisting debt, and mortgage securing the same; and no allegation of any renewal of the mortgage was necessary.