182 P. 815 | Cal. Ct. App. | 1919
After the sale of mortgaged property under a decree of foreclosure, the plaintiff ex parte procured an order vacating the decree, annulling the sale and *489 permitting the filing of an amended complaint to reform the mortgage for mistake. Subsequently on notice, separate motions to set aside the ex parte order were made by new defendants brought into the suit under a summons issued on the amended complaint, and by those of the original defendants who were directly affected by the decree of foreclosure. Both motions were denied. The new parties appeal from the second order only, and the original defendants appeal from the ex parte order and from the order refusing to set it aside. Under stipulation the appeals are presented on one record and are determined together.
On behalf of the respondent it is contended that neither appeal from the second order may be considered because the order vacating the decree was appealable. The case appears to be within recognized exceptions to the rule in that the order was made on an ex parte application and it was adverse to the new defendants who claimed under the original defendants. (Pignaz v. Burnett,
The plaintiff and respondent, as the assignee of the original mortgagee, sued in the ordinary form to foreclose a mortgage made on April 19, 1913, to secure the payment of a debt evidenced by a note of even date with the mortgage, for one thousand four hundred dollars, payable one year after date, with interest at seven per cent, compounded every three months. The assignment of the note and mortgage to the plaintiff was in August, 1914, after the maturity of the note. The mortgage, which was recorded three days after its execution, accurately described by metes and bounds a lot in the city of Oakland, designated for convenience as lot 1. The plaintiff sued Eva E. Peppin, and J. B. Peppin, Jr., her husband, the original mortgagors, together with Jennie F. Stone and E. B. and A. L. Stone Company, a corporation, and certain fictitiously named defendants, who it was alleged claimed an interest in the mortgaged property, subject to the lien of the mortgage. The suit was commenced November 1, 1917, and, *490 after service and return of the summons, on January 8, 1918, the plaintiff showed the default of the named defendants had been entered, dismissed the action as to the fictitiously named defendants and proved his mortgage and debt, including interest, attorneys' fees and costs, of $1,631.88. The court thereupon made a decree in accordance with the allegations and prayer of the complaint, and the mortgage, a copy of which was appended to the complaint as an exhibit, and ordered a sale of the mortgaged property by a commissioner named in the decree, which contained a provision for the docketing of a deficiency judgment. The court, therefore, had jurisdiction of the subject matter and the parties, and the judgment followed the complaint, the allegations of which were admitted by the defaults. The judgment was entered January 11, 1918, and was executed on February 12, 1918, by the sale of lot 1, as described in both the mortgage and the decree. No deficiency judgment was entered, or at least the record fails to disclose anything from which the contrary might be inferred.[1] In the absence of any showing in the record upon the subject, the presumption is that the proceeds from the sale of the mortgaged property satisfied the judgment. (Code Civ. Proc., sec. 1963, subds. 5, 20, 28.)
[2] Subject to the power of a court of equity to set aside the judgment in a separate suit for fraud or mistake, or within the period limited by the section, for the trial court to vacate the judgment on motion under section
It was sought by the amended complaint to substitute for the mortgaged lot another lot, designated as lot 2, owned by the E. B. and A. L. Stone Company, and to effect this purpose the former adjudication was set aside ex parte. Where under a provision of the Practice Act, the court made an order directing the adverse party to a judgment to appear at a time fixed to show cause why it should not be vacated, the supreme court, solely for the reason that it did not affirmatively appear that a copy of the order was served on him or that he had notice of the time when the motion would be heard, reversed the order vacating the judgment. (Vallejo v. Green,
The decision might rest on the jurisdictional ground of lack of notice, but so anxious are appellate courts to sustain the actions of trial courts, it is considered proper briefly to state other reasons why the order vacating the judgment must be reversed. [5] While section
Whether a valid judgment is attacked in a separate suit or by motion, the considerations which should move the court are substantially the same, because the same remedy is sought, and if given, awarded for the same reasons: (Estudillo v. SecurityLoan etc. Co.,
There was no statement to explain why the mistake was not discovered before the plaintiff commenced the suit in which he proved the mortgage of the lot described in it, and sold under the decree, none to show that the judgment was not fully satisfied from the proceeds of the sale of the lot which was mortgaged, and none concerning what other property was sought to be subjected to the lien of the five year old mortgage, nor what new parties and intervening rights might be affected.[7] Where the judgment is regular on its face, an affidavit of merits is indispensable as a basis of the motion. (Nevada Bank
v. Dresbach,
Even though it could be assumed the court acted on the allegations contained in the proposed amended complaint with the averments of the attorney's affidavit, the order vacating the judgment could not be sustained. In the amended complaint it was alleged in substance, that in 1913 the original mortgagors owned adjoining lots 1 and 2; that they agreed with McDonald, the original mortgagee, that if he would lend them one thousand four hundred dollars to be secured by a mortgage of lot 2, they would build on that lot a house according to plans then before the parties, to cost not less than the one thousand four hundred dollars to be loaned; that by a mutual mistake lot *495
1 was described in the mortgage instead of lot 2; that the one thousand four hundred dollars was loaned and the house built on lot 2 with the one thousand four hundred dollars; that a month after the making of the mortgage the mortgagors by grant deed conveyed both lots to Jennie F. Stone and E. B. and A. L. Stone Company; that on September 1, 1917, E. B. and A. L. Stone Company by grant deed conveyed the mortgaged lot 1 to Jennie F. Stone, and on October 1, 1917, the Stone Company contracted to sell the unmortgaged lot 2, with the house, to John Sloss and Margaret Sloss for three thousand five hundred dollars, of which $175 had been paid; that Mr. and Mrs. Sloss had entered into possession of the house, and, inferentially at least, were living there when the suit to foreclose the mortgage on lot 1 was commenced, and continuously thereafter, as appears from the attorney's affidavit and the order vacating the decree, until the plaintiff upon his first visit to them, after the commissioner's sale, learned that the mortgage did not cover their home. It further appears from the amended complaint that the plaintiff bought the mortgage after the maturity of the note secured by it. It is alleged that both the Stone deeds were without consideration, and the bald statement is made as to each of the changes of ownership of the mortgage and the property, that the parties engaged in the particular transaction knew of the original agreement that the mortgage should cover the lot it did not cover, and that at the time of each transaction the parties to it believed the mortgage described the property on which the house was built. There was no suggestion of fraudulent concealment, and no fact was stated to explain why the information so readily gained after the foreclosure sale was not discovered before the suit was commenced or within the period of nearly three months which elapsed between the commencement of the suit and the date of the decree. The mortgage, its assignment, and each of the deeds were recorded, and the most careless observer would have been able to distinguish the difference between 187 1/2 feet and 225 feet, the distance from the corner of the block respectively to the nearest line of the mortgaged and the unmortgaged property. No fact is stated which in any way explains why the successive owners of the lots and the mortgage dealt as they did for a period of five years *496
with matters of public record without any of them discovering that none of them had taken the trouble to find out with what he was dealing. If the owners of the lots were negligent in this regard, the owner of the mortgage was not thereby excused from ascertaining what an ordinarily prudent man buying the mortgage might have learned at the time of the purchase, and what he ought to have learned before commencing suit. "The reasons, and the causes, and the excuses for the inadvertence are matters which concern the court, and these are not stated.[9] Inadvertence in the abstract is no plea upon which to set aside a default. The court must be made acquainted with the reasons for the inadvertence and, if satisfactory, will act upon them and relieve from burdens caused by them; but, if the inadvertence is wholly inexcusable, as if it arises from gross negligence, the court will not look upon it kindly, and will have none of it." (Shearman v. Jorgensen,
The order vacating the judgment is reversed.
Langdon, P. J., and Haven, J., concurred. *497