No. 4,012 | Cal. | Jul 1, 1874
1. It appears by the bill of exceptions that the defendant did not offer evidence in support of his cross-complaint until after both parties had respectively introduced their evidence upon the cause of action set forth in the complaint, and had submitted the cause to the Court for decision. Whether, under such cicumstances, he should be permitted to re-open the cause for the introduction of proof in support of his cross-complaint was a matter resting in the discretion of the Court below. The bill of exceptions is silent as to the circumstances attending the refusal to permit him to do so, and we cannot presume that the discretion was incorrectly or improvidently exercised.
2. But irrespective of this, we think the refusal of the Court below to hear evidence in support of the cross-complaint was correct. Its allegations are resolvable into averments that in two other actions theretofore pending between the parties, Miller obtained judgment against Sharp, directing in each case a sale of certain mortgaged premises, and the docketing against Sharp of the deficiency remaining after application of the proceeds of the mortgage sales, and that in each case the deficiency, reported by the Sheriff and docketed by the Clerk, was for more than was in fact due, and that Sharp afterward paid this excess to Miller in effecting redemption from the mortgage sales, etc. It is apparent that upon these facts the remedy of Sharp was by application directly made to the Court in which the decrees of foreclosure were rendered and under whose direction the mortgage sales were conducted. In such application the Court, upon ascertaining the alleged excess in the report of the Sheriff, might have corrected its record in that respect, so as to protect the rights of the parties. But it is no) competent in this mere collateral manner to question tho validity of the proceedings in foreclosure, remaining of record in the Courts in which they were entered, and evidence offered for the purpose was properly excluded.
Judgment affirmed. Remittitur forthwith.