77 P. 770 | Cal. | 1904
This is an appeal by the defendants from a judgment entered against them upon default after demurrer overruled. The suit was brought to foreclose a mortgage made by the defendants to secure the payment of the defendant H.R. Arndt's note to the plaintiff for the sum of six thousand dollars, etc. The judgment recites the previous appointment of a receiver in the case, and that his account rendered subsequently to the default of the defendant shows a balance in his hands of $142.30, which, it is adjudged, should be allowed as a credit on the mortgage. It is further found, or rather in effect adjudged, that there is now due and owing to the plaintiff from the two defendants, after deducting the credit allowed, the sum of $7,526.76, together with three hundred dollars allowed as attorneys' fees and costs.
The points urged by appellant — or such as require consideration — are: That the judgment imposes on the defendant, *66 Mrs. Arndt, who was not a party to the note, a personal liability for the debt, and that the appointment of the receiver ana the appropriation of the funds in his hands to the satisfaction of the mortgage debt was not warranted either by the allegations or by the prayer of the complaint.
As to the first of these objections there can be no doubt — in the event of the proceeds of the sale proving to be insufficient to satisfy the mortgage — that the plaintiff would be authorized by the judgment, as it stands, to enter a deficiency judgment against the defendant, Mrs. Arndt, who is not personally liable. (Code Civ. Proc., sec. 726.) Nor is it any answer to this objection for respondent to say that he may not, or even that he will not, avail himself of this power. The judgment should therefore be modified in this regard.
The other objection involves, in fact, two propositions: The one relating to the jurisdiction of the court to appoint a receiver, pending the suit; the other, to the appropriation of the money in his hands to the satisfaction of the debt. With regard to the former it is assumed in the argument of the appellants' counsel, that the order appointing a receiver was made on the complaint; in which, in fact, there is nothing to justify the appointment, unless it be a stipulation in the mortgage providing for the appointment of a receiver on ex parte
application; and on this assumption it would be necessary to sustain the appellants' contention. (Baker v. Varney,
We advise that the cause be remanded, with directions to the lower court to modify the judgment as indicated in this opinion, and that when thus modified the judgment shall stand affirmed.
Gray, C., concurred.
For the reasons given in the foregoing opinion the cause is remanded, with directions to the lower court to modify the judgment as indicated in this opinion; and that when thus modified the judgment shall stand affirmed.
McFarland, J., Henshaw, J., Lorigan, J.