WHITEHEAD et al. v. HOLMES et al.

WHITEHEAD et al. v. HOLMES et al.
1931 OK 635
3 P.2d 1043
152 Okla. 214
Case Number: 20433
Decided: 10/20/1931
Supreme Court of Oklahoma

WHITEHEAD et al.
v.
HOLMES et al.

Syllabus

¶0 1. Appeal and Error--Review--Sufficiency of Evidence in Law Action Tried to Court.
The judgment of the trial court in a law action tried by the court without a jury will not be disturbed by this court, if there is any competent evidence reasonably tending to support the same.
2. Same--Mortgages -- Foreclosure Action--Judgment for Amount of Taxes Paid Sustained.
Where the pleadings in an action to foreclose a mortgage allege the payment of taxes and a lien therefor, and the mortgage provides for a lien for the taxes paid, and there is competent evidence that the taxes had been paid, a judgment for the amount of the taxes will not be disturbed by this court on appeal.
3. Same--Judgment in Foreclosure Action for Nonpayment of Interest Coupons Held not to Bar Action on Principal Note.
Where a mortgage provides for foreclosure thereof for nonpayment of interest coupons, subject to the lien of the mortgage as to the principal debt, the fact that judgment has been rendered for foreclosure of the amount due and evidenced by interest coupons is not a bar to subsequent action on the principal note.
4. Same--Judgment Foreclosing Mortgage Sustained.
Record examined, and held to support the judgment of the trial court.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Action by Edward R. Holmes and Ralph W. Holmes, a copartnership doing business under the firm name of R. E. Holmes' Sons, against J. E. Whitehead. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. E. Whitehead, Vern D. Adamson, and Stephen A. George, for plaintiffs in error.
McQueen & Kidd and Potterf, Gray & Poindexter, for defendants in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Carter county in favor of the plaintiffs, defendants in error herein, against the defendant, plaintiff in error herein. The parties hereinafter will be referred to as plaintiffs and defendant.

¶2 In his brief the defendant waived all assignments of error directed to the jurisdiction, and all other assignments of error "save and except those that bear upon the four propositions herein discussed." Those four propositions are:

"1. That the court erred in overruling the demurrer of defendant to the evidence of plaintiff.

"2. That the court erred in rendering judgment for plaintiffs after they had split their cause of action and theretofore sued and recovered on a part of it.

"3. That the court erred in rendering judgment for plaintiff for taxes alleged to have been paid when there was no proof whatever of the payment of same.

"4. That the court erred in rendering judgment for attorney's fees when attorney's fees had been recovered upon the cause of action in the former suit."

¶3 The contention that a former action between the parties based on interest coupons should have been based upon the original notes as well as the interest coupons is without merit. The mortgage contained a provision as follows:

"It is also agreed that the lien of this mortgage as to defaulted interest coupons may be foreclosed for nonpayment of any interest coupon or coupons after any such coupon has become due and in such case the foreclosure may be made by the holder of the defaulted interest coupon, for such coupon and costs and attorney's fee as herein provided, whether such holder is the payee thereof or assignee; and such foreclosure shall be subject to the lien of this mortgage as to the principal debt hereby secured and any interest coupon or coupons not past due at the time of commencement of such foreclosure. Such foreclosure to be in all respects and to have the same effect as a foreclosure of a second lien mortgage."

¶4 That provision authorized the procedure followed by the plaintiffs. The cases cited and relied upon by the defendant have no application to a cause wherein the mortgage authorizes the procedure followed by the plaintiffs.

¶5 There was ample evidence to sustain the judgment as to the taxes, one of the witnesses having testified, without objection or cross-examination, that the taxes had been paid.

¶6 There is no merit in the contention that, since attorney's fees had been allowed in the former suit, no attorney's fees should be allowed in this suit. The mortgage provided for the attorney's fees.

¶7 There is ample evidence to sustain the judgment, and the demurrer of the defendant to the evidence of the plaintiffs was properly overruled.