William McCann vs. Mortgage, Bank & Investment Co.; David Williamson vs. Mortgage, Bank & Investment Co.; Thomas Halvorson}} vs. Mortgage, Bank & Investment Co.
Opinion filed March 13th, 1893.
Foreclosure by Advertisement—Enjoined.
The powers embraced in the proviso of § 5411, Comp. Laws, regulating foreclosures of mortgages by advertisement, construed. Held, that the several orders made by the Judge of the District Court in the above entitled matters, directing the discontinuance of foreclosure proceedings by advertisement, and requiring that the further foreclosure proceedings of said mortgages be had in court, are valid orders; the same being based in each case upon an affidavit which was satisfactory to the judge who made the order, and which also set out such facts as are required by said proviso to be embodied in such affidavits.
Foreclosure by Action—Cumulative Remedy.
Held, further, that the proceeding in which the above entitled matters origin- ated is, considered as a remedy, merely cumulative, and the same is not to be classed with, or regulated by, the principles of law and rules of practice which obtain in civil actions in which equitable relief by injunction is sought.
Discretionary Power of Court.
Held, further, that the proviso contained in § 5411, supra, is intended to confer upon Judges of the District Courts certain authority, to be exercised at their discretion, and such descretion is nonreviewable, except in cases of abuse, and that the several records herein fail to present a case of abuse of discretion.
Repeal of Usury Law—Forfeiture Not Extinguished.
Held, further, that the usury statute embraced in Ch. 70, Laws 1889, was, without a saving clause, repealed by § 12, Ch. 184, Laws 1890; but such repeal does not operate to extinguish any penalty, forfeiture, or liability incurred under the act of 1889. Section 4767, Comp. Laws.
Appeals from District Court, Bottineau County; Morgan, J.
Affirmed.
The facts fully appear in the following statement by Wallin, J.
An appeal to this court is taken in each of the above entitled matters by the Mortgage, Bank & Investment Company, which company is the mortgagee in all of the above mentioned mortgages. The several appeals are from orders of the District Court for Bottineau County, denying appellant's application to set aside previous orders made by the judge of said court. The opinion
