6 Cal. 173 | Cal. | 1856
Mr. Chief Justice Murray concurred.
Plaintiff instituted a suit against Smith, as mortgagor, and defendants, Gilmore, Torrey and Fargo, as subsequent encumbrancers, for the purpose of foreclosing- a mortgage on certain lands in Alameda county; process was duly served on all the defendants, and no answer having been filed within the time prescribed by law, on motion of plaintiff] and on production of the original note and mortgage a decree was entered. Afterwards defendants, Gilmore, Torrey and Fargo moved that the judgment be set aside, and leave be given to file an answer, which motion being overruled, an appeal is taken.
It is contended that the complaint does not state facts sufficient to constitute a cause of action against the said defendants, because the mortgage which is set out in the complaint did not contain a sufficient
At common law, default confessed every issuable fact stated in the declaration, and could only be set aside for objections to the declaration, which would have been good on general demurrer. Com. Dig., Pleader C., 20; Gould’s Pl., 145, 506; 2 Burr., 900; 10 East., 364 This rule has not been changed by our statute. This view disposes, also, of the third objection.
The fourth is, that the Court erred in refusing to set aside the judgment on motion.
■ The sixty-eighth section of the Practice Act allows a Court to “ relieve a party from a judgment taken against him through his mistake, inadvertanee, surprise or excusable neglect, and when the summons is not personally served, may allow an answer to be filed within six months, etc. There was no sufficient ground in the affidavit to authorize the Court to set aside the judgment, under the provisions of that section. The summons was personally served, and there is, in the affidavit, no averment of mistake, surprise, or inadvertanee, or any attempt to account for the failure to answer within the time allowed by law. The motion was therefore properly denied.
The fifth objection is, that the Court erred in decreeing that on the sale of the land, the sheriff should execute a deed in favor of the purchaser, and that the purchaser on the production of such deed, should be let into the possession of the property. In the case of Middleton v. Guy, decided at the October Term, 1855, this Court held that lands sold under a decree for foreclosure of mortgage, were subject to be redeemed in the same manner as lands sold under ordinary execution. So much of the decree, therefore, as directs that the sheriff execute a deed to the purchaser, and that on the production of the deed, the purchaser shall have possession of the property, is erroneous. An error of this kind is not sufficient ground for depriving the respondent of the benefit of the judgment to which he is entitled.