111 Wash. 550 | Wash. | 1920
This action was commenced in August, 1918, to recover judgment on a promissory note in the sum of $1,200, and to foreclose a mortgage given to secure the same on July 7, 1910, payable three years after the date thereof. The only payments that had been made were for interest to July 7, 1916.
The answer, after a general denial of the allegations of the complaint, contained a first affirmative defense alleging the existence of an agreement whereby the attorney for plaintiff was to receive for his services in the present case an amount less' than that specified in the note and mortgage sued on and less than that to be fixed by the court in the decree. The answer also set up an- alleged second affirmative defense to the effect that the note and mortgage were given for
At the trial, after- the plaintiff had put in all its evidence, the defendants made an oral application for leave to amend their answer by setting up certain matter which' consisted, first, of substantially-the same matter as that contained in the second affirmative defense, to which a demurrer had been sustained and second, matter in the nature of' set-offs consisting of two parts, viz.: (1) That, from August 10, 1910, to July 7, 1915, defendant Adolf Loewe had conducted some thirteen mortgage-foreclosure cases for, plaintiff wherein the trial court had allowed in the decrees
First, it is claimed, error was committed in sustaining the demurrer to the second affirmative defense. This portion of the answer says: “The note -and mortgage were given for money used in the improvement of the real estate mortgaged,” which must be taken as an admission that the note and mortgage were given and that $1,200 were received by the appellants, as .alleged in the complaint. We are aware
Next, it is claimed the court erred in excluding evidence in support of the first affirmative defense. There was no evidence offered on the subject. Appellant Adolf Loewe testified that, sometime in 1909 or 1910, two officers of the respondent corporation told him they never paid their attorney the amount fixed by the court as attorney fee, but nothing was offered to show the respondent's attorney in the present case was acting under that or any similar agreement.
Assignments number 3 and 4 relate to the refusal of the court to permit the trial amendment as herein-before described. As already noticed, the application was made after the respondent had put in its proof. A portion of the proposed amendment had been already disposed of adversely on a demurrer thereto. As to the remainder, if it be assumed that, generally
The fifth assignment is that the court erred in granting judgment and decree of foreclosure. The proof in support of the complaint was ample and uncontradicted.
In the sixth assignment it is claimed the court should not have confirmed the sheriff’s sale of property, for three reasons: (1) Because the affidavit of publication of notice of the sheriff’s sale was not properly signed as the same appeared in the sheriff’s return of sale. Upon permission of the court, properly granted, the irregularity was corrected and the affidavit correctly signed at that hearing. (2) It is claimed the sale should have been set aside because of inadequacy of the price at which the property was sold. There were affidavits that the property was worth largely in excess of the amount for which it was sold, and it also appears that, only a few months before the sale, appellants filed a declaration of homestead upon the whole of the property, alleging that its worth was $4,000, but this seems to us to be immaterial. It was sold to the highest bidder, and the appellants cannot be injured by the sale of the property for less than the amount of the judgment. They have a year in which to redeem from the sale, and the less the bid, the smaller amount required to redeem. (3) It is claimed that the sale was irregularly made because the
Finally, it is claimed the court erred in denying an application of the appellants for an order staying the execution of the deficiency judgment during the pendency of their appeal to this court. In this there was no error. The deficiency judgment was definite and certain. The statute, Rem. Code, § 1722, provides that, in order to effect a stay of proceedings, a bond, where the appeal is from a final judgment for the recovery of money, shall be given in a penalty double the amount of the judgment appealed from. It was a case in which there was no occasion for an application to the court. The matter was definitely fixed by the provisions of the statute.
The judgment is affirmed.
Holcomb, C. J., Parker, Main, and Mackintosh, JJ., concur.