Frisbie v. Fogarty

| Cal. | Jul 1, 1867

By the Court, Shaeter, J.:

The plaintiff’s right to the writ of assistance depends entirely upon whether the judgment in the foreclosure suit, to which Barry and wife were confessedly parties, comprehends them and their interests by its terms. There is no jurisdictional point involved, and none of error, affecting the judgment. The only inquiry is as to what the decree says.

By the decree speaking in rem, “ it is ordered, adjudged and decreed that all and singular the mortgaged premises mentioned in the complaint in this cause and hereinafter described, or so much thereof as may be sufficient to raise the amount due to the plaintiff for the principal, interest and costs in the suit and expenses of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction,” etc.; “ and it is further ordered, adjudged and decreed that the defendants and all persons claiming or to claim from or under them be forever barred and foreclosed,” etc. Further on “it is ordered, adjudged and decreed that the purchaser or purchasers of said mortgaged premises at such sale be let into possession thereof, and that any of the parties to this cause, who may be in possession of said premises or any part thereof * * * deliver possession thereof to said purchaser or purchasers on production of the Sheriff’s deed.”

It will be seen that the mortgaged premises are directed to be sold without exception or reservation; that Barry and wife, as “ defendants,” are foreclosed and barred of all equity of redemption, and, as “ parties to the cause,” are comprehended in the direction relating to the surrender of possession.

Order reversed and the Court below is directed to issue the writ of assistance applied for.

Mr. Justice Rhodes expressed no opinion.