(Download) "Rochester v. Bennett" by Supreme Court of Montana ~ Book PDF Kindle ePub Free
eBook details
- Title: Rochester v. Bennett
- Author : Supreme Court of Montana
- Release Date : January 08, 1925
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
Mortgage Foreclosure ? Jury Trial ? Receiver ? Improper Appointment ? Complaint ? When Deemed Amended to Conform to Proof ? Executors and Administrators ? Personal Judgment Against, Unauthorized. Mortgages ? Foreclosure ? Jury Trial. 1. An action to foreclose a mortgage is one in equity which is not changed into one at law by pleadings which raise issues of law on questions incidental to the principal relief sought by plaintiff, and therefore defendant is not entitled to a jury trial. Same ? Insufficient Complaint Deemed Amended to Conform to Proof, When. 2. Where in an equity action an objection to the introduction of testimony on the ground that the complaint was insufficient did not raise the point sought to be urged, the pleading will be deemed amended to conform to proof, if the evidence is otherwise sufficient to sustain conclusion of court. Same ? Receivers ? Evidence ? Insufficiency to Warrant Appointment. 3. Held, in an action to foreclose a real estate mortgage in which plaintiff prayed for the appointment of a receiver to conserve the rents, issues and profits thereof during pendency of suit and the period of redemption on the ground that the property covered by the mortgage was probably insufficient to discharge the debt, that the evidence did not warrant the appointment of a receiver for that purpose. - Page 294 4. The power to appoint a receiver should be exercised sparingly, and only upon a strong showing of the necessity therefor, and even then with caution. Same ? Executors and Administrators ? Personal Judgment Against, Unauthorized. 5. In a mortgage foreclosure proceeding in which the widow of the decedent mortgagor was made defendant as executrix of his estate, rendition of a decree awarding plaintiff a personal judgment against her in her representative capacity, while error, was not such as required its reversal, it being subject to correction by the trial court without affecting any substantial rights of the parties.