86 Cal. 241 | Cal. | 1890
—The action was to foreclose two mortgages executed to the plaintiff by the defendant Joaquin S. Serpa to secure payment of his promissory notes, the first mortgage, dated June 2, 1885, to secure fifteen hundred dollars, with interest, and the second, dated September 14, 1885, to secure six hundred dollars. The respondent Maria L. Serpa was made defendant on the alleged ground that she had, or claimed to have, some interest in or lien upon the mortgaged property subject to the mortgage. The mortgagor, Joaquin S. Serpa, in person, without an attorney, demurred generally to the complaint, and his demurrer being overruled, failed to answer, and his default was duly entered. The defendant Maria answered to the effect that, after the execution of the mortgages, in July, 1886, she married the defendant Joaquin; that in January, 1887, by a decree of the superior court in which this action was brought, she obtained a divorce from said Joaquin on the ground of extreme cruelty, and also a judgment against him for $290, and for forty dollars per month as permanent alimony, which judgment was duly docketed immediately after it was entered, and that said judgment remains in full force, and is a lien upon the mortgaged property.
1. Respondent has moved to dismiss the appeal, on the alleged ground that the notice of appeal was not served on the defendant Joaquin. It appears, however, by affidavit filed in the court below, and properly certified to this court (Moore v. Besse, 35 Cal. 184), that at the time the appeal was taken and the notice thereof served, the defendant Joaquin resided out of this state, and the record shows that the notice of appeal was served on the clerk for him. As he had appeared in person, and had no attorney, this was proper service. (Code Civ. Proc., sec. 1015.)
2. The bill of exceptions shows that, on the trial, the defendant Maria, and other witnesses on her behalf, were permitted by the court, against proper objections by plaintiff’s counsel, to testify to statements and admissions of the defendant Joaquin, in regard to the notes and mortgages in suit, the purpose for which they were executed, and as to the consideration therefor, made ten months and a year after their execution. Frank Pendro was thus permitted to testify that in August, 1886, the
Belcher, C. C., and Foote, 0., concurred.
The Court. — For the reasons given in the foregoing opinion, the motion to dismiss the appeal is denied, and that part of the judgment appealed from is reversed, and the cause remanded for a new trial between the plaintiff and the defendant Maria L. Serpa only.