107 Cal. 160 | Cal. | 1895
Action to foreclose a mortgage executed by the defendant Lavinia Hall. The other defendants were made parties to the action under the allegation that they have or claim some interest in the mortgaged premises, subject to the lien of the plaintiffs. The defendant Hall demurred to the complaint, and upon the overruling of her demurrer she failed to answer, and her default was thereupon entered. The defendants Mansfield made no appearance, and their default therefor was entered. Judgment was rendered in favor of the plaintiffs, directing a sale of the mortgaged property, foreclosing all the defendants of any right therein, and providing that, if the proceeds of the sale of the mortgaged property was insufficient to pay the amount found due to the plaintiffs, judgment for the deficiency should be docketed against the defendant Lavinia Hall. The defendant Lavinia Hall alone has appealed.
1. The notice of appeal was served upon the plaintiffs alone, and the respondents have moved to dismiss the appeal for failure to serve the notice upon her codefendants. As the averment in the complaint that the interest of the other defendants in the mortgaged property is subject to the lien of the plaintiff was admitted by their default, and as the judgment merely forecloses their interest in the property, it is evident that they could not be affected by a reversal of the judgment, or by a modification of any of the terms thereof which affect the appellant and the respondents.
The appellant ought not to object to an uncertainty in description which she has herself made. It does not appear that the corporation had issued to the appellant a'Certificate for the shares of its capital stock; and, if not, the description in the complaint, as well as in the mortgage, was sufficient to identify the property which the appellant intended to mortgage, as well as for the purpose of a sale under the judgment. Such a description in an instrument of sale would transfer any title the vendor might have to shares af the capital stock in a corporation for which no certificate had been issued.
3. In the judgment rendered by the court there was allowed to the plaintiffs the sum of four hundred dollars as counsel fees in foreclosing the mortgage. The complaint contains no averment of any agreement on the part of the mortgagor to pay a counsel fee, nor does the copy of the mortgage annexed to the complaint contain any such stipulation. In the absence of an agreement therefor the court was not authorized to include counsel fees as a part of the judgment. (Sichel v. Carrillo, 42 Cal. 493; Clemens v. Luce, 101 Cal. 432.) Neither the prayer in the complaint for its allowance nor the averment of the amount which would be reasonable can supply the necessity of a direct averment that an attorney’s fee had been agreed to be paid by the mortgagor.
The motion to dismiss the appeal is denied, and the cause is remanded to the superior court, with directions to modify the judgment by excluding therefrom the amount included therein for attorneys’ fees; and, when so modified, the judgment will stand affirmed.
Van Fleet, J., and Garoutte, J., concurred.
