The Idaho Republican. [volume] (Blackfoot, Idaho) 1904-1932, 1911-10-27
JUDGE STEVENS Is AFFIRMED BY
SUPREME COURT
Justice Ailshie Dissents from Opinion
of Chief Justice Stewart, and
Concurred in by Sullivan
Capital News)

| Capital News)
Although Judge Ailshie dlssented
Judge Sullivan and Chief Justice
Stewart affirmed the decision OF
Judge J. M. Stevens of the Sixth ju-
dicial district for Bingham county, in
the case of the Biackfoot State bank
VS.. M. P. Crisler, an action for the
foreclosure of real estate mortgage
wherein judgment was given for the
defendant and the plaintiff appealed.
The action involved suit to fore
close mortgage given by Crisler to
secure the payment of promissory
note for the sum of $500 dated
March 20, 1909. 1t was claimed that
the note had been procured by fraud
on the part of the bank and one
Claude Ferguson and H. c. DIPPED,
who had been partners in the drug
business with Crisler at the time and
prior to the giving of the note and
mortgage.
The opinion of the supreme courl
was written by Chief Justice Stewar
and concurred in by Judge Sullivan
in their syllabus they find:
"First-Where there is substan
tial conflict in the evidence this court
on appeal will not disturb the find.
ings and judgment of the lower court.
Observation-Disclosures in this case ex-
amined and held sufficient to support
The findings and judgment.
"Third-In an action to foreclose
real estate mortgage, where the de-
Tense made is fraud and payment OF
the note and mortgage, and demand
has been made for the surrender OF
the note and the release of said mort
gage, and the trial court finds that
the mortgage was fraudulent and has
fully been paid, the findings of the
trial court which invokes the penalty
of 500 as provided in revised codes,
section 3402, and renders judgment
in accordance Herewith, will not be
disturbed"
Dissenting Opinion
In his dissenting opinion, Judge
Ailshie says:
81 concur in the conclusion reach
ed by the majority of the court ex-
tept as to the judgment for 500 pen
atty under section 3402, revised
codes. | cannot consent to sustain
judgment for the penalty allowed.
Statutes of this kind, penal in their
nature, should be strictly construed,
and the case ought to fall clearly
within it's terms before allowing
ecovery. 1t was clearly never in
.onded that this statute should apply
to a case of dispute over the terms
IT a private or contemporaneous
'greement like the one at issue in the
case, whereby it is claimed that on
the happening of certain events over
which the debtor has no control, he
should be relieved of future respon-
sibility as to the security he had fur
nished. If the holder of a mortgage
must take the risk of being mulcted
in damages for penalties every time
he refuses to release mortgage, the
terms of. which he claims have not
been complied with or on which he
claims the whole sum secured has
not been paid, and bona fide con-
troversy arises, think it will prove
most dangerous to lenders and the
holders Of mortgage security.
II am in favor of inflicting the
penalty provided by this statute
where the holder of a mortgage will
fully neglects and refuses, after de-
mand is made, to make a release or
satisfaction of a mortgage. am not,
however, willing to join in penalizing
the holder of mortgage security be-
cause he refuses to release a mort
gage. where there is debatable con-
troversy or dispute existing between
the parties as to whether it has been
fully paid or the contract fully COM
piled with. l am consequently salts
fed that the penalty should not be in
flicted in this case"
/