Wisser v. O'Brien

The objection, that plaintiff failed to show a demand upon the mortgagor, does not seem to have been raised below. At the close of plaintiff’s evidence, no motion was made for a non-suit on the ground that plaintiff had not shown enough to maintain the action. The proof showed that a written demand for the return of the goods had been made by plaintiff upon the sheriff, prior to the commencement of the action. But as to a demand upon the mortgagor, the case appears to have been tried upon the assumption by the court as well as the counsel for the respective parties, either that such demand was not necessary, or, if material, that it was duly made, and that such fact was too incontrovertible to be disputed. Under these circumstances, and in view of the fact that appellant’s counsel has strenuously insisted—and we are inclined to believe—that, if the obj ection had been raised, it could and would have been readily obviated by proof, the ends of justice require that we should not entertain the objection, if it is one, on appeal for the first time. Although it is true that, if a judgment or order or ruling is right in point of law, the fact that it cannot be sustained upon the theory' of law on which the court below proceeded, is no reason for reversing it, yet it is equally true that that rule is enforced only when all the facts are before the court, and from them it appears that the correction of the theoretical error is not at all important to a correct decision of the question involved. Whenever there is reason to believe that an erroneous view of the law, expressed and enforced by the court below, induced the appellant to abstain from offering evidence, which would have been material to him under the view taken by the appellate court, or whenever it is made to appear that a material fact was assumed in the court below to exist, without any objection on account of the want of evidence thereof, the appellate court, in either case, will decline to enforce the rule referred to.

The only question, therefore, remaining for our consideration is, whether or not plaintiff’s mortgage, which has not "been impeached as fraudulent against creditors, ceased to "be valid against the execution creditors represented by the defendant, by reason of plaintiff’s omission to refile a true copy pursuant to the requirements of the statute. The evidence shows that the mortgage, which was payable on demand, was executed on the 4th of May, 1867 ; that the following day a copy of it was duly filed; that a copy was refiled on the 4th of May, 1868 ; that still another copy was filed on the 8th of May, 1869, and that the sheriff seized the property under an execution issued on the 5th of August, 1869, on a judgment-obtained against the mortgagor on the 4th of December, 1867. Consequently, in directing a verdict against the plaintiff on the merits, no objection having been raised on account of the absence of proof above referred to, Justice McCttnn, who presided at the trial, must have held, as appellant’s counsel insisted he did hold, that the refiling of the 8th of May, 1869, was too late, and for that reason was no compliance with the requirements of the statute. But as the .commissioners of appeals have since held in Newell v. Warren, 44 N. Y. 244 , that a mortgage once refiled within thirty days next preceding the expiration of the first year continues valid without further refiling in subsequent years, the said ruling constituted error, for which the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.