285 P. 354 | Cal. Ct. App. | 1930
This is an appeal from an order of the Superior Court directing the commissioner appointed by the court to execute a deed to the purchaser of certain real property at a sale under a decree of foreclosure of two mortgages. The appeal is presented on a typewritten transcript.
The appellant joined with her husband in the execution of a mortgage on the property on April 11, 1913. The defendants Otto and Minna Pachmayr on April 11, 1921, executed a second mortgage on the same property in favor of Thomas W. Miller, the alien property custodian. On January 22, 1926, this mortgage was duly assigned by the custodian to Walter E. Mingramm. In this suit for foreclosure *97 of the first mortgage Walter E. Mingramm was joined as a party defendant and then came forward as a cross-plaintiff seeking foreclosure of the mortgage thus assigned to him. Issue being joined, the trial court made its decree ordering the foreclosure of both mortgages in favor of these respective plaintiffs. A commissioner was duly appointed, who made the sale to the respondent Hooper, to whom certificate of sale was duly issued.
Before the expiration of one year from the date of the sale an attorney claiming to represent Mrs. Mingramm paid to the commissioner an amount sufficient to redeem the property from execution sale. This sum the commissioner tendered to the purchaser at the sale, who refused to accept it. After the expiration of the year the court directed the commissioner to execute a deed to the purchaser and such deed was executed and delivered. It is from this order that the appeal is taken on behalf of Mrs. Mingramm.
The respondent, the purchaser at the commissioner's sale, urges in support of the order that appellant is not a party entitled to redeem. He also has moved to dismiss the appeal on the ground that the appellant is not a "party" aggrieved by the order and also on the ground that the order having been fully executed the questions raised are moot.
The appellant was joined as a party defendant, but the cause was dismissed as to her and she was not thereafter a party to the proceeding. The attorney appearing for her on this appeal filed an affidavit in the court below stating that he appeared for her, but the court, after a hearing upon oral and documentary evidence, recited in its order that this attorney appeared for the court commissioner. The appellant is a resident of Holland and has not in person or by letter of any character made any appearance in the proceedings except as may have been done in the manner above noted.
[1] The right of appeal is limited to a "party aggrieved." (Sec. 938, Code Civ. Proc.) One who has not been made a party to a cause may make himself a party by moving to set aside the judgment or order complained of, or by otherwise submitting himself to the jurisdiction of the court. (Elliott v. SuperiorCourt,
If we are bound by the recitals in the order of the trial court it must be apparent that the appellant has not submitted to the jurisdiction of the court in any manner and that she is not therefore a party entitled to appeal from the order. It would also seem that the entire controversy over the order is moot because the deed has been executed and delivered and the order is now functus officio. But the record is in such condition that we do not deem it proper to grant the motion to dismiss on either ground.
[2] On the merits the issue is plainly stated by both parties to be whether the appellant is a party entitled to redeem under the provisions of section
The motion to dismiss is denied.
The order is affirmed.
Sturtevant, J., and Dooling, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 19, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 17, 1930.
All the Justices present concurred.