Fyne v. Commercial Centre Realty Co.

SEAWELL, J.

A statement of the ease in which this appeal is taken from a judgment rendered for plaintiff and respondent may well be taken from the recital of facts set forth in appellant’s brief. The action was an ordinary action for the foreclosure of a mortgage. The plaintiff alleged the execution and delivery of a note and mortgage by appellant, Commercial Centre Realty Company, a corporation, to respondent, Eva Fyne, on January 27, 1926, to secure payment of the principal sum of $10,000 five years after date, with interest at the rate of seven per cent per annum, payable monthly in advance. The note provides that if interest is not paid within thirty days after the same becomes due the whole of the principal sum shall forthwith become due and payable at the election of the holder of the note, without notice. It is alleged, and not denied, that the interest has not been paid since June 27, 1926. The complaint was filed February 1, 1927, and prays for judgment against the defendant for the whole of the principal, with interest according to the terms of the note from June 27, 1926, together with reasonable counsel fees and costs of suit, and for the sale of the mortgaged premises.

Defendant admitted the execution of the note and mortgage, but presented the issue that the plaintiff, Eva Fyne, was not the real party in interest and alleged that E. T. Prather and Ray Prather, husband and wife, and parents of Eva Fyne, were the real owners and holders of the note and mortgage, and that defendant had been served with certain attachments and executions in actions brought against the Prathers; admitted that defendant had not paid the interest, but averred that it had offered to do so if indemnified by the Prathers against said executions and attachments, and offered to deposit the whole amount of interest

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due in court, subject to the orders of the court. A supplemental answer was filed on the day of trial alleging the issuance of attachments and garnishments and the service thereof upon appellant in an action brought against the Prathers since the filing of appellant’s answer and, further, the issuance and service upon appellant of a garnishment issued in an action brought since the filing of said answer in which respondent, Eva Fyne, is joined as a party defendant with the Prathers. The entire transaction between the plaintiff and defendant corporation was conducted by Mr. A. Ruef, the manager of said corporation.