
    JAMES VALLEY BANK, Respondent, v. NICHOLAS et al, Appellants.
    (210 N. W. 191.)
    (File No. 5931.
    Opinion filed October 7, 1926.)
    Judgment' — Usury—Bills and Notes.
    Motion,to vacate deficiency judgment on usurious mortgage note Laid properly denied, where defense of usury was not . raised at trial, and for that reason was not considered on appeal which resulted in affirmance.
    
      Note. — See, Headnote, American Key-NumberecL Digest, Judgment, Key-No. 377, 34 O. J. Sec. 49 9.
    Appeal from Circuit Court, Hand County; Hon. Alva E. Taylor. Judge.
    Action by the James Valley Bank by F. R. Smith, Superintendent of Banks of South Dakota, against Percy Nicholas and another. Judgment for plaintiff was affirmed on appeal. Defendants’ motion to vacate the judgment was denied and they appeal.
    Affirmed.
    
      Frank R. Fisher, of 'Miller, and Gardner & Churchill, of Huron, for Appellants.
    
      Fiarían J. Bushñeld', of Miller, for Respondent.
   DIERON, J.

This proceeding is brought to hane a deficiency judgment vacated. The record discloses the following facts: That on December i, 1919, appellants gave to the Guaranty 'State Bank of Ree Heights, S. D., a promissory note for $6,000, secured by a mortgage on certain land in Hand county, S D.; said mortgage being subject to a prior loan made by the state of South Dakota in the amount of $10,000 upon the same premises. Said note provided for interest at the rate of 10 per cent, and further provided that the principal and interest, if not paid when due, should 'bear interest at 12 per cent. Said Guaranty State Bank sold this note and mortgage before maturity to the respondent in this action. Appellants defaulted in their interest payments, and on August 5, 1921, respondent foreclosed by advertisement, and the sheriff of Hand county sold' .said premises to respondent for the sum of $5,117.40; $60.10 of this amount being the costs of such foreclosure sale. The amount due on the note at the time of said foreclosure sale was $7,117.40, so there was a balance due of $2,000. Respondent then secured a deficiency judgment against appellants for $2.090.5. Appellants appealed from such judgment and an order dcnving a new trnl, and in James Valley Bank v. Nicholas et al, 47 S. D. 461, 199 N. W. 117, this court held that appellant’s first defense, viz., that, since the note provided on its face for the payment of usurious interest, it is void, could not be considered, since “this defense is raised for the first time on the argument in this court. It is not pleaded in the answer, nor was it presented to the trial court on the trial, nor on the motion for a new trial, nor in this court by any assignment of error.” It was further held in the opinion handed down at that time that the sale was legal upon the authority of Nelson v. Caspary, 46 S. D. 632, 195 N. W. 532; Hagan v Pratt, 46 S. D. 267, 192 N. W. 370, and Bank v. Fair Ass’n, 2 S. D. 145, 48 N. W. 852. An application for a rehearing was made, which application was denied by this court. Appellants then- moved the circuit court of Hand county to> set aside and vacate the deficiency judgment ordered about three years previous, upon the ground that the note, upon which said judgment was- issued, called for a rate of interest in excess of that permitted by law. The. motion came on for hearing, and respondent demurred upon the following grounds:

“(1) That such application did not state grounds sufficient to constitute a ground of relief.
“(2) That the,issues raised by such motion are res adjudicata
”(3) That the defendants are guilty of laches.
“(4) That the defendants are. now estopped .after having had their day in court and after having appealed to the Supreme 'Court from such judgment.
“(5) That the note in question was not void on its face, and the defendants, by failing to make the defense of usury at the trial of such' action waived such defense.
“(6) Thai the motion of the defendants is now barred by the statute of limitations.
“(7) That the face of the record set out in the defendants’ application shows that there was no usury charged by the plaintiff.”

The lower court held that the foreclosure proceedings and the deed issued thereon were valid, and could not be assailed in this proceeding or in a collateral action. It is from such order that this appeal is taken.

Appellants urge three defenses: First, that the promissory note is void', having been executed in violation and contrary to the provisions of sections 1041 and 1042, R. C. 1919; second, that thq note is prohibited by statute, and is against public policy; third, that the judgment is void.

It becomes unnecessary for this court to decide whether or not the note was usurious, as appellants cannot now avail themselves of that defense. Sections 1041 and 1042, R. C. 1919, were in force at the time respondent secured the deficiency judgment, nearly three years ago, and, since they failed to avail themselves of the defense of usury at that time, the issue has become res ad judicata. HI litigation must come to an end, and the same issue cannot be canvassed in two actions. 34 Cyc. 1666.

The order of the trial court denying the motion to vacate the judgment is affirmed.

MISER, Circuit Judge, sitting in lieu of SHERWOOD, J.

GATES,. P. J., and CAMPBELL and FOLLEY, JJ., concur in the result only.  