95 Cal. 88 | Cal. | 1892
On February 1,1888, Robert W. Forth made his promissory note to the defendant Barnard, for four hundred dollars, payable one year after date, with interest at one per cent per month, and to secure the
Plaintiff commenced this action on February 14,1891, to foreclose both the street assessment and the mortgage, alleging substantially the facts above stated, and in addition thereto, that Barnard indorsed the mortgage note; and praying judgment against the defendants for the amount due upon the note and mortgage for principal and interest; that the mortgaged premises be sold for cash, subject to the lien of the street assessment, “ or in default thereof, that the proceeds of said sale be appro
The answer of the defendants, other than Barnard, admits the facts stated in the complaint, and prays that any surplus of the proceeds, “after satisfying the judgment of the plaintiff herein,” be paid to them; but if there remains no surplus, that they “may go hence without costs,” etc.
The defendant Barnard in his answer denied that he indorsed the note; admits that his name was written to a receipt indorsed upon the note for interest paid him before he assigned the note, but denies that it was written or intended as an indorsement of the note to plaintiff; denies all the averments of the complaint relating to the street assessment; alleges that, at the time of the assignment, the value of the mortgaged property was eight hundred dollars, and that plaintiff neglected to enforce payment of the note by suit or otherwise, nine months after the assignment, during which period he might have foreclosed the mortgage, and thereby realized the whole amount due thereon before the alleged street assessment was levied, and that since said assessment the property has greatly depreciated in value.
Findings of fact were waived. The court decreed a sale of the mortgaged premises by the sheriff, and from the proceeds ordered the sheriff to pay to the plaintiff $512, the amount found to be due on the note and mortgage, and from the surplus, if any, to pay plaintiff the further sum of $188.36, for principal and interest of the street assessment; and should a surplus still remain, that it be paid into court for the defendants, other than Barnard. And the court further ordered and adjudged, that if the money proceeds of the sale should be insuEcient
The plaintiff brings this appeal from the judgment, upon the naked judgment roll, without any bill of exceptions.
1. It is contended that the court erred in directing the proceeds of the sale to be first applied to the payment of the note and mortgage; that the street assessment should have been first paid, and that a judgment should have been docketed against Barnard for the deficiency of the proceeds of the sale to pay both the assessment and the mortgage, since he was liable for both, and the mortgage was subject to the assessment. This, however, involves the untenable assumption that the street assessment was valid. Barnard denied the validity of that assessment, and the presumption, from the judgment roll containing no bill of exceptions nor findings of fact, must be that the court found in his favor upon the issue as to the validity of the street assessment. That the court allowed the street assessment as against the other defendants, who. were the owners of the mortgaged property, is accounted for by the fact that they, in their separate answer, expressly admitted “ the truth of the allegations in the complaint contained.”
2. It is contended for appellant that the court erred in refusing plaintiff a judgment for costs. This point has no foundation in the record. It merely appears that there is no judgment for costs. It does not appear that plaintiff filed or served any cost bill, and it cannot be presumed that he did. (Riddell v. Harrell, 71 Cal. 254; Thompson v. Brannan, 76 Cal. 618.) Nor does it appear that he in any manner moved the court, either before or after final judgment, to allow him costs. But if the court erred in denying him costs before final judgment, the error should have been shown by bill of exceptions, or statement on motion for new trial. (Muir v. Meredith, 82 Cal. 19.) Had the court made an erro
I think the judgment should be affirmed.
Belcher, C., and Temple, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.