10 Cal. 369 | Cal. | 1858
Terry, C. J., and Baldwin, J., concurring.
The defendants are an incorporated company, and the action is brought upon a draft and mortgage alleged to have been executed by them. The draft is drawn upon the treasurer, and is signed by McCall, the president, and Clary, the secretary, of the company. The mortgage is signed in the same way; and the complaint avers that both draft and mortgage were executed by the corporation, by its president and secretary, “ for that purpose duly authorized and empowered,” and is verified.
The answer contains—first, a general denial of the allegations of the complaint, and then a specific denial of the execution of the mortgage by the corporation, and of any right or authority in the president and secretary to execute the same, and of any
The plaintiff obtained judgment against the corporation for the amount due on the draft, and a decree for the sale of the right, title, and interest, of McCall and Clary, in the mortgaged premises, the application of the proceeds to the payment of the judgment, and execution for any deficiency against the corporation. From this judgment and decree the corporation appeals, and assigns as error: first, that the decree is, in part, against McCall and Clary, who are not named in the complaint as defendants, and were not served with process; second, that the complaint does not aver notice to the drawee of the presentation and non-payment of the draft; and, third, that the draft is not an obligation of the company, but only of McCall and Clary.
The first error assigned can not be taken advantage of by the appellants. The corporation is not injured if the decree does embrace parties not named in the complaint, or served with process.
The second assignment of error is answered by the fact that the drawee of the draft is an officer of the company. The draft is only an order of the company upon itself—from its head and secretary, upon its treasurer; and it is well settled that in such cases no notice of presentation and non-payment is necessary.
The third assignment is answered by the fact that the execution of the draft by the corporation is not put in issue by the pleadings.
Judgment affirmed.