Opinion
No. 5627.
April 6, 1931.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Action for cancelation of mortgage. Judgment for defendants. Affirmed.
F.E. Tydeman, for Appellant.
Merrill Merrill, for Respondents.
This action was heretofore before this court. ( Civils v. First National Bank of Pocatello, 41 Idaho 690, 241 P. 1023.) Since the former appeal, appellant's name has been changed to Mrs. Garvin.
The facts sufficiently appear in the former opinion, which held the only grounds available to appellant in her attack upon the mortgage in question were payment and respondents' alleged unlawful coercion exerted against O.K. Exum.
The trial court in the second action, found against appellant on both these points, and there is no evidence in the present record which would justify any other finding.
The court found that Mrs. A. Exum had adopted the disputed signature to the mortgage, claimed by appellant to be a forgery, which finding as a legal proposition is justified. ( Clegg v. Eustace, 40 Idaho 651, 237 P. 428; State v. Burtenshaw, 25 Idaho 607, 138 P. 1105; First Nat. Bank v. Glenn, 10 Idaho 224, 109 Am. St. 204, 77 P. 623.) But appellant urges adoption of the signature was not alleged, and it was not; since, however, the judgment may be affirmed on the first findings above referred to, it is unnecessary to consider the availability to appellant of the doctrine of adoption, not pleaded.
The court found appellant, as the representative of O.K. Exum, estopped by his acts to assert or rely upon the forgery, if there was one, since he participated therein. This finding is in accord with the previous opinion herein, which upon its rendition became the law of the case, and henceforth binding herein. ( Lindsay v. People, 1 Idaho 438; Palmer v. Utah Northern Ry. Co., 2 Idaho 382, 16 P. 553; Hall v. Blackman, 9 Idaho 555, 75 P. 608; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Gerber v. Nampa Meridian Irr. Dist., 19 Idaho 765, 116 P. 104; City of Nampa v. Nampa Meridian Irr. Dist., 23 Idaho 422, 131 P. 8; Brinton v. Johnson, 41 Idaho 583, 240 P. 859; Mathers v. Mathers, 42 Idaho 821, 248 Pac. 468; Vinyard v. North Side Canal Co., 47 Idaho 272, 274 Pac. 1069; Crockett v. Jones, 47 Idaho 497, 277 P. 550.)
If the question of service in the mortgage foreclosure may now or herein be questioned, the evidence conclusively showed service upon Mrs. A. Exum.
No rights of creditors, protection for which is sought through the administratrix, are herein involved.
Judgment affirmed. Costs to respondents.
Lee, C.J., and Varian and McNaughton, JJ., concur.
Petition for rehearing denied.