Hibernia Savings & Loan Society v. Lewis, 117 Cal. 577

117 Cal. 577 | Cal. | 1897

The Court.

This cause was submitted to Department One, and on January 23, 1897, the following decision was rendered:

“Searls, C.—Two appeals were taken in this case— one from an order refusing to vacate the judgment and the other from an order granting a writ of assistance. Upon motion of counsel for respondent the appeal from the order refusing to vacate the judgment was dismissed. (Hibernia etc. Soc. v. Lewis, 111 Cal. 519.) It follows that the only questions for consideration are those involved in the appeal from the order granting the writ of assistance.

“The action was brought December 1, 1892, to foreclose a mortgage executed May 26, 1891, by Anna A. Lewis and William F. Lewis (who are husband and wife) upon a city lot, situate at the southeasterly corner of Jackson and Baker streets, San Francisco, to secure the joint and several promissory note of the mortgagors, bearing even date with the mortgage, for seven thousand dollars, and payable one year after date, with interest, etc. The mortgage was duly recorded at the date of its execution. The Santa Cruz Rock Pavement Company and sundry other parties were made defendants, as subsequent lienholders, but as they are not involved in this appeal they need not be further mentioned. Summons was duly served upon Anna A. Lewis and she made default. Defendant William F. Lewis was served with summons March 1, 1894, in Sonoma county, and appeared, and in March, 1894, filed a demurrer to the complaint, which was overruled, whereupon, and on April 11,1894, he filed an answer in the case. On May 31,1894, on motion of defendant William F. Lewis, he was permitted to withdraw his answer. A decree of foreclosure was entered in due form December 5, 1894, under which the mortgaged property was duly sold, the plaintiff (respondent here) became the purchaser, and, no redemption having been had, a deed was in due form executed, exhibited to appellant, who was in possession, and possession demanded from him, which was refused, and thereafter, on application of plaintiff, and after a hearing and opposition by appellant, the writ issued. The appellant, J. D. Boyer, was in possession of the property under a deed of conveyance executed by the mortgagors, Anna A. and William F. Lewis, May 4, 1893, and duly recorded at the date thereof.

“As will be seen from the foregoing statement, appellant purchased the mortgaged premises during the pendency of the action to foreclose. A writ of assistance is the proper remedy to place the mortgagee who has purchased under a foreclosure sale in possession under his deed. It runs against the mortgagor and all persons who have purchased the fee under him pendente lite with notice. (Freeman on Executions, sec. 37 d; Wiltsie on Foreclosures, sec. 593; Montgomery v. Tutt, 11 Cal. 190; Frisbie v. Fogarty, 34 Cal. 11; Skinner v. Beatty, 16 Cal. 156; Montgomery v. Middlemiss, 21 Cal. 103; 81 Am. Dec. 146; Sichler v. Look, 93 Cal. 600; Newmark v. Chapman, 53 Cal. 557.)

“Appellant contends that he is not bound by the decree, for the want of notice, either constructive or actual, of the pendency of the action. Respondent avers in his brief that a lis pendens was recorded December 1, 1892, in liber 40 of Lis Pendens, at page 50. We find no proof of this fact in the record and cannot assume it to be correct. We think, however, the court was fully justified in holding, as it must have done, that appellant had actual notice of the pendency of the action. The facts as disclosed by the record on this point are: 1. That the appellant, who was the purchaser from the mortgagors, appeared in this action as the attorney for William F. Lewis, and filed a demurrer to the complaint, and, upon its being overruled, on the 11th of April, 1894, filed an answer for said Lewis to the complaint; 2. Said answer set out that after the commencement of the action (some thirteen days after December 1, 1892), as the affidavit shows, plaintiff and defendant entered into an agreement whereby it was stipulated that the time for payment should be extended, and the default mentioned in the complaint should be waived, in consideration of which Anna A. Lewis paid to plaintiff two hundred dollars, etc. This answer was sworn to by appellant here, as attorney for the defendant, who says in his affidavit ‘ that the affiant knows the facts set forth in the above answer are true/ If he knew those allegations to be true, he must have known of the pendency of the action, as the sole object of that agreement was to postpone the pending foreclosure. The object of notice to a purchaser pending the action is to give him an opportunity of being substituted as a party thereto under section 385 of the Code of Civil Procedure, and thus to conserve his rights, or he may permit the action to continue in the name of the grantor, but, in either event, he is equally bound by the judgment with his grantor.

“Appellant further contends that neither he nor his grantor, William F. Lewis, are bound by the judgment, for the reason that the latter was served with an alias summons, which issued more than one year after the original summons. Section 408 of the Code of Civil Procedure, which provides for an alias summons, contains the proviso ‘that no such alias summons shall be issued after the expiration of one year from the date of the filing of the complaint/ The complaint having been filed December 1, 1892, and the alias summons not having' been issued until February 14, 1894, was not in time. But under section 416 of the Code of Civil Procedure, ‘the voluntary appearance of a defendant is equivalent to personal service of the summons and copy of the complaint on him.’ When defendant William F. Lewis appeared, demurred to the complaint, and filed an answer thereto, the court acquired jurisdiction of his person thereby, and, whether there was or was not a valid summons or any summons, in the case, was of no moment. It is true that appellant made a showing of mistake in answering, and that he supposed the summons was valid when he appeared in the case, etc. This was proper in his motion to set aside the judgment, which motion, it seems, was denied and an appeal taken from the order. But that appeal was dismissed. In the present appeal the judgment, being fair on its face, and which on the judgment-roll the court had authority to render, cannot be collaterally attacked for mere voidable error which can only be reached by appeal from the judgment or proceedings aimed at its existence subsequent to the rendition thereof. ‘It is a doctrine of law too long established to require the citation of authorities, that where a court has jurisdiction it has a right to decide every question which occurs in the cause, and, whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding on every other court.’ (Peck v. Jenness, 7 How. 612, 624.)

“The order appealed from should be affirmed.”

Thereafter, upon appellant’s motion and showing that the order of submission had been improvidently made, and that he had been deprived of the opportunity orally to argue his case, the judgment was vacated, the order of submission set aside, and the cause was orally argued before the court in Bank and submitted.

After due consideration we are satisfied that the opinion heretofore rendered in Department is sound.

For the reasons therein set forth the order appealed from is affirmed.

Beatty, 0. J., did not participate in the foregoing decision.