125 Cal. 74 | Cal. | 1899
It is alleged in the complaint herein that in an action brought to foreclose a mortgage executed by the plaintiff to the defendant Brooks, the defendants filed an answer setting up as a defense that the action was prematurely brought by reason of the fact that the time for the payment of the note secured by the mortgage had been extended to a date subsequent to the commencement of the action; that -the cause was tried and judgment rendered in favor of the plaintiff therein; that thereafter the plaintiff herein filed and served a notice of his intention to move for a new trial, and that a bill of exceptions based upon said notice had been settled, allowed and filed in said action, and that an affidavit to be used on said motion had also been filed; that under said judgment the property described in the mortgage had been sold to the mortgagee and a deed therefor executed to him; that the proceeds of said sale being insufficient to satisfy the judgment, a judgment for the deficiency had been docketed against the plaintiff herein, and that an execution had been issued upon said deficiency judgment, and certain personal property sold by virtue thereof to one of the defendants herein. The complaint further alleges that prior to the commencement of said action the defendant, Charles W. Reed, induced the mortgagee to violate his agreement for the extension of payment and to commence the ac
1. It is not alleged in the complaint whether the motion for a new trial in the original action has been determined or not. In the absence of any averment upon the subject it must be assumed that the motion is still pending and undetermined. The fact, as averred in the complaint, that one of the defendants therein had changed its attorneys, and that such attorneys had abandoned all the rights of that defendant upon the motion for a new trial, did not preclude the plaintiff herein from prosecuting his own motion therefor or from appealing from the judgment therein. As all the facts upon which the plaintiff claims that the-judgment of the court was unauthorized were set up in his answer to the foreclosure suit, it must be assumed that the court found that they were unsustained by the evidence. If such was not the fact, or if the judgment therein was rendered by reason of any error or irregularity in the procedure, such error must be cured through the proceedings for a new trial. If, however, it be the fact that that court has denied his motion for
2. As the court by giving judgment for the plaintiff in the foreclosure suit must have found that the action was not prematurely brought, it is evident that the mortgagee in bringing the action after the maturity of the obligation was in the exercise of his legal rights, and that the action of Mr. Reed in inducing him to bring the suit was not with any fraudulent purpose, however much he may have sought to profit thereby. It may he added that the allegations in the complaint fail to establish any fraudulent purpose or conduct on the part of Mr. Reed. No fact is alleged which either by itself or in connection with the other portions of the complaint constitute a sufficient averment of fraud.
The appeal herein is without merit, and the judgment is affirmed.
Garoutte, J., and Van Dyke, J., concurred.