KALANIANAOLE
v.
SMITHIES, TRUSTEE OF COCKETT
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A trustee's successor and beneficiary sued to enforce a deficiency judgment from a mortgage foreclosure against the defendant and an estate executor. The Supreme Court affirmed the lower court's judgment, holding that the assignment of the judgment to the successor trustee was valid, that the joinder of the executor was a harmless procedural error, and that only the whole interest in the judgment needed to be before the court rather than the original judgment creditors themselves.
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Memorandum opinion by direction of the court. By
Mr. Justice Holmes.
This is a suit on a deficiency judgment rendered upon foreclosure of the mortgage that was under consideration in Kawananakoa v. Polyblank, 205 U. S. 349. The judgment was in favor of Polyblank, Trustee, and Cockett, sole beneficiary, against Kawananakoa and the plaintiff in error, Kalanianaole. Before the present suit was begun the trustee resigned, Smithies was duly appointed successor in the trust and the former trustee assigned the judgment to him. Smithies and his beneficiary then brought this action against the plaintiff in error and the executor of Kawananakoa who had died. The executor demurred and had judgment. The plaintiff in error then answered, setting up the discharge of the executor and that the plaintiffs allowed the claim against the latter to be barred.by time before bringing suit. The Case was heard upon mutual admissions of the facts set up in the declaration and answer. In argument the plaintiff in error also objects that only the original judgment creditors could sue. Both objections were sufficiently answered in the court below. That as to the plaintiffs is pure matter of form, on which we should not go behind the local practice. The whole interest in the judgment was before the court. As to the second, the judgment was sued upon as a joint judgment, but it ceased to be joint by the death of one of the parties bound, as is the nature of joint obligations. Edsar v. Smart, T. Raym. 26; Y. B. 3 ed. 3, 11, pl. 37. See 2 Vernon, 99. The joinder of the executor was simply a mistake that did ho harm. See Bierce v. Hutchins, 205 U. S. 340, 347.
Judgment affirmed.
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Cheung Sum Shee v. Nagle, 268 U.S. 336 (U.S. 1925)
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Marion Steam Shovel Co. v. Bertino, 82 F.2d 541 (8th Cir. 1936)…e it was subject to demurrer. Apparently a demurrer was interposed, but the ruling upon it is not urged as error in this court. It is sufficient to say that the error, if any, was harmless. It goes to a mere matter of form. Kalanianaole v. Smithies, 226 U.S. 462, 33 S.Ct. 169, 57 L.Ed. 303; Mann v. Doerr, 222 Mo. 1, 121 S.W. 86. We have considered defendant s contention that the court erred in the matter of refusing requested instructions. Those refused, in so far as they contained a proper statement of th…
Authorities Cited
- Kawananakoa v. Polyblank, 205 U.S. 349 (U.S. 1907)
- Bierce v. Hutchins, 205 U.S. 340 (U.S. 1907)