71 P. 495 | Cal. | 1903
This action was brought to foreclose a mortgage made on December 2, 1887, by the defendant Bowles to Alexander Montgomery, deceased, in the lifetime of the latter. The complaint alleges that in March, 1892, the defendant Bowles conveyed the mortgaged premises to the defendant Hatch, and that the latter then agreed to pay to Montgomery the balance of $20,000 then due on the note and mortgage, together with interest according to the terms of the said note. The appellant, Sherman, Clay Co. (a corporation), was made defendant in the suit, for the reason, as alleged in the complaint, that it had, or claimed to have, "some right, title, interest, or estate in and to the said mortgaged lands," which were subsequent and subject to the lien of said mortgage. The appeal is from the judgment. There *451 is also an appeal from the order overruling the demurrer of Sherman, Clay Co., but, as the latter appeal is unauthorized by our practice, it may be disregarded.
The appellant corporation demurred generally and specially to the complaint, and after this demurrer was overruled filed its answer, in which it denied most of the allegations of the complaint. In this answer the appellant also, in substance, stated that it had obtained a judgment against the defendant Hatch, and that the same "was duly entered and recorded in said superior court on the twenty-first day of April, 1896, and that the lands described in the complaint were subject to the lien of that judgment. The answer prayed that plaintiff take nothing, and that appellant's lien be foreclosed. This was the only interest of appellant shown by the allegations of its answer or otherwise, and, of course these allegations are treated as denied by plaintiff, under our statute, and the burden of proving their truth was upon the appellant. It appears from the bill of exceptions, and from the findings, that the case came on regularly for trial on September 8, 1898, and the appellant, "though called at the front door by the order of the court, made no appearance, and the same was duly noted in the minutes of the court." On the trial there appears to have been no proofs offered or made as to the allegations of appellant's answer, and for that reason the court finds that all the allegations thereof are untrue, and adjudges that appellant take nothing. There is no specification that this finding is unsupported by the evidence; and by not attacking it in any way on this appeal, the appellant seems to concede that it is true and proper. The allegations of the complaint did not constitute an admission that appellant had an interest in the land. This finding being true, it disposed of the only issue material to appellant, and was in and of itself sufficient to support the judgment against appellant. It showed that appellant had no further interest in the subject-matter in litigation, and that whatever action might be taken, or might theretofore have been taken, by the court, was entirely immaterial and could in no way hurt the appellant. It having no interest in the lands mortgaged, even its denials of the allegations of the complaint became immaterial. It will therefore be entirely unnecessary to review the action taken on appellant's *452
demurrer, or to notice the many alleged errors of the court urged upon our attention by appellant, for it clearly appears from the record before us that appellant can be in no way aggrieved thereby, even conceding that the court erred. (Code Civ. Proc., sec. 475.) Our position in this regard finds support in the following decisions of this court: Dayton v. McAllister,
The judgment should be affirmed.
Chipman, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
McFarland, J., Lorigan, J., Henshaw, J.
