58 P. 688 | Cal. | 1899
The appellants executed to the respondent their promissory note for two thousand dollars April 27, 1892, payable three years after date, with interest payable semi-annually, and as security for its payment executed at the same time a mortgage upon certain real property, with a provision therein for its foreclosure in case of default in the payment of the note, or of any instalment of interest when due thereon. There was no provision that the note should be deemed to have matured in case of any default in the payment of interest. October 6, 1893, the first instalment of interest not having been paid, the respondent commenced an action for the foreclosure of the mortgage, alleging in her complaint that the entire amount of the sum named in the note, both of principal and for interest, was due. The defendants in their answer denied that any part thereof was due thereon except for the interest then accrued upon the principal sum. Judgment was entered November 27, 1893, for the amount of the interest then due, and directing the sale of the mortgaged premises, or so much thereof as should be necessary to satisfy said amount. No provision was made in the judgment in reference to the amounts subsequently to fall due upon the note. No sale was made under this provision of the judgment, nor was the amount thereof paid. In April, 1897, the plaintiff served upon the defendants, and presented to the court, her affidavit of these facts, and also that since the entry of the judgment the principal sum named in the note, with interest thereon that had accrued since the entry of the judgment, had become due, and had not been paid, and moved the court for an order and decree directing a sale of the property described in the decree of November 27, 1893, to satisfy the amount which had become due on the note since the rendering of said decree. The court granted her motion, and on October 12, 1897, caused to be entered an order entitled "decree of foreclosure and order of sale," by which it determined the amount that had become due upon the promissory note since the entry of the decree of November 27, 1893, and directed a sale of so much of the mortgaged premises as should be necessary to satisfy the same. The defendants have appealed therefrom. *286
The respondent contends that this court cannot consider the appeal, and that it must be dismissed for the reason that it was not taken within sixty days after the entry of the order appealed from. This involves a determination of the character of the direction of the superior court from which the appeal is taken — whether it is to be regarded as an order or as a judgment. If it is to be considered as a judgment, the appeal therefrom could have been taken within six months from its entry, whereas, if it is an order, it should have been taken within sixty days after its entry.
Section
The omission to provide in the judgment for a subsequent sale of any portion of the mortgaged premises, in the case of default in the payment of the note or interest thereon *287
as it matured, is supplied by section
We are the less reluctant to dispose of the appeal upon this question of practice, for the reason that if we were at liberty to consider it upon the merits we should be compelled to affirm the action of the superior court. The grounds chiefly urged in support of the appeal are that the failure to reserve in the judgment of 1893 the right to direct any further sale of the premises deprived the court of such power; that this judgment was a final determination of the rights of the parties to the action, and that the court could render no further judgment therein. As seen above, section
The defendants had an opportunity to controvert the facts set forth in the plaintiff's affidavit, but offered no evidence therefor, and these facts must be considered as admitted by them. As they chose to rely for their defense upon technical rules of procedure, they cannot complain that similar rules are invoked against them. The proceedings on the part of the plaintiff may not have been conducted with the most strict regard to the provisions of the statute, but, as was said in Bank of Napa v.Godfrey, supra: "It is evident to our minds that the appellant is seeking the aid of this court to avoid the payment of a just obligation, and we hold that the statute has been substantially complied with and the proper result has been reached."
The appeal is dismissed.
Van Dyke, J., and Beatty, C.J., concurred.