4 P.2d 604 | Cal. Ct. App. | 1931
This appeal from a judgment on the pleadings, quieting respondent's title to certain real property presents for decision the sole question: Does the answer state a defense? If it does not, the judgment is correct. (Hamman v. Milne,
The complaint alleges that in a prior action to foreclose a mortgage upon the same property, wherein respondent was plaintiff and appellants were defendants, the Superior Court in and for the City and County of San Francisco, on March 26, 1926, duly and regularly made its decree of foreclosure; that this court, upon appellants' appeal, affirmed that judgment; that, pursuant to the decree, the commissioner therein named, on April 27, 1926, sold the property to respondent and, on April 28, 1927, deeded it to respondent. Copies of the decree, opinion of this court affirming the judgment (
Appellants' joint answer merely denies that the superior court "duly and/or made the decree of foreclosure" and affirmatively alleges that the decree was secured by reason of appellants' mistake and respondent's fraud, whereby appellants were prevented from presenting their defenses. The answer next fully details these defenses, which it is alleged were also pleaded in the foreclosure action and which, *694 summarized, consisted of a denial of the debt, lack of consideration for the mortgage note, a counterclaim, which an accounting would establish to be in excess of such note, and the invalidity of the note's assignment to respondent's intestate.
As to appellant's mistake and respondent's fraud, it is alleged that on March 10, 1926, said action was set for trial on March 25, 1926, in department 16 of said superior court; that on March 16, 1926, the presiding judge reassigned said action to department 8, of which reassignment appellants notified respondent; that on March 19, 1926, upon appellants' motion, after notice to respondent, said action was set for trial at the foot of the jury calendar; that appellants arranged with the court clerk for notice as to when the case would be reached; that appellants believed the case was transferred and that they would receive such notice from the clerk and did not expect or have any intimation from respondent that the case would be called for trial as originally set; that on March 25, 1926, knowing such belief of appellants and their mistake as to the effect of such reassignment and their willingness to have been in court if notified, respondent, for the purpose of defrauding appellants of their defenses, proceeded to trial in department 16, in the absence of appellants and without notice to them and without advising the court of such reassignment, and procured, by default, the decree of foreclosure. The appellants further allege that, upon learning of the entry of the decree and sale, they moved the trial court to vacate the decree, but were refused by an order which became final January, 1929. The answer concludes that respondent, because of its purchase of the property under the decree so obtained, holds title in trust for defendants.
[2] The answer is a direct attack upon the decree of foreclosure. (Follette v. Pacific Light Power Corp.,
[3] The period of limitation in which appellants could seek relief from the decree on the ground of fraud or mistake was three years from the discovery of the fraud or mistake. (Code Civ. Proc., sec. 338; Estudillo v. Security Loan etc. Co.,supra; Davis v. Hibernia Sav. etc. Soc.,
The judgment is affirmed.
Tyler, P.J., and Knight, J., concurred.