124 Cal. 297 | Cal. | 1899
Foreclosure of a mortgage on real estate. The complaint is verified. Plaintiff had judgment, from which defendant, Catharine S. Escailler,appeals on the judgment-roll alone. Appellant objects to the judgment upon two grounds: 1. That it was error to allow attorney’s fees; and 2. That the count erred in failing to find upon the issues raised hy her answer.
1. The mortgage was given to secure the payment of a promissory note. Upon the subject of attorney’s fees it contained the following provision: Upon default ‘The mortgagee may foreclose this mortgage, and may include in said' foreclosure a reasonable counsel fee, to be fixed hy the court, together with
2. The only answer to the complaint made by defendant, the
It is also found that the. principal sum of the note, together " with interest (except fifty dollars interest paid 'before suit was brought), is unpaid. The finding as to payments made after suit was commenced shows that the amount corresponds with the amount alleged to have been paid under the agreement pleaded, but there is nothing in the findings to show that this was the identical money so paid.
Appellant makes the point that the court erred in not finding upon the issues presented by the answer, to which the respondent replies, that the answer presented no-issues, calling for findings. It is not necessary to pass upon the sufficiency of the answer to raise an issue of fact.
The judgment is therefore ordered modified in the respect above indicated—that is to say, a personal judgment shall be given to plaintiff for the amount found due to him for counsel and attorn ejr’s fees in this foreclosure suit, but such amount shall not be included in the amount of the mortgage lien for the payment of which the property was ordered sold. In all other respects the judgment is affirmed.