121 Cal. 194 | Cal. | 1898
Action to foreclose a mortgage brought originally by Alvinza Hayward (for whom plaintiff John Spaulding, as assignee of Hayward, was substituted) against J. W. Howard, one of the defendants, mortgagor. Succinctly stated the facts are: That said J. W. Howard on August 8, 1872, executed his note for four hundred and five dollars and forty-eight cents to one Joseph Hewitt, payable August 8, 1874, and secured by mortgage on lands in Lake county. The note and mortgage were assigned by Hewitt to Hayward November 4, 1875, long after" maturity. The assignment was in writing and was acknowledged, but was not recorded. . On December 9, 1876, Howard executed his note to defendants Ely and Griffin for four thousand seven hundred dollars, secured" by mortgage on the same and other lands. This note was due twelve months after date. Howard’s wife joined in the mortgage, which was recorded December 29, 1876. On February 12, 1878, Ely and
It is contended that the findings do not sustain the decree:
*197 (a) Because no valid order of sale was issued under the foreclosure of Ely and Griffin, it being claimed that the writ must be not only issued under the seal of the court, but also subscribed by the clerk. (Citing Code Civ. Proc., secs. 682, 684.) The findings are that the court ordered the land included in the Ely and Griffin mortgage to be sold by the sheriff of Lake county, in which county it was found that their decree had been duly docketed and recorded; that “an order of sale was duly issued out of the superior court of Yolo county, under seal of said court, upon said judgment and decree and reciting the same; directed to the sheriff of said Lake county, commanding him,” etc. The sheriff, under the Code of Civil Procedure, proceeds with the sale by virtue of the decree and such direction as the •court may give. (Code Civ. Proc., sec. 726.) The proceeding follows by analogy sales upon execution, but not necessarily so. The power to sell comes from the statute and the decree. However, the court found that an order of sale was duly issued upon the decree, and, if the law required it to be certified or attested by the clerk, it will be presumed that this was done. (Code Civ. Proc., sec. 1963, subd. 15.) If plaintiff desired to dispute this presumption when the defendants offered their decree in evidence, he should then have made the objection and brought the question here by bill of exceptions or statement.
(b) The point is made that the conclusions of law and fact must be separately stated; that the conclusion in regard to the statute of limitations is in the findings of fact; that there is nothing in the conclusions of law to the effect that the action is barred, and this being a conclusion of law and not of fact plaintiff should have had a decree against all the defendants. (Citing Caulfield v. Sanders, 17 Cal. 571; Schroeder v. Johns, 27 Cal. 278, 279; Paulson v. Nunan, 64 Cal. 290.)
Defendants Ely and Griffin pleaded the statute of limitations. Plaintiff’s right of action against Ely and Griffin accrued to his Assignor December 29, 1876, when the second mortgage was recorded, as his note was then long past due. But defendants Ely and Griffin were not made parties to- this action until December 9, 1884, eight years after plaintiff’s cause of action .accrued against them. Of course, Ely and Griffin’s rights were mot affected by the assignment of Hewitt to Hayward, of which
: The court found that "any cause of action which Hayward;, .or plaintiff Spaulding as his successor in interest herein, ever had against said Ely and Griffin, or against either of them, is barred by the provisions of sections 312, 335, and 337 of the Code of Civil Procedure.” The court, properly, we think, found as a fact and not as a conclusion of law that the action was barred. ■■
. (c) It is complained that the decree was rendered on findings made May 9, 1887,. but that other findings were made February -8, 1886, and were never set aside or any motion made for a new trial, .and this is alleged to be error. (Citing Prince v. Lynch, 38 Cal. 530; 99 Am. Dec. 427.) Appellant gives no explanation by bill of exceptions or otherwise how there came to be two .sets of findings; nor does he point out wherein his rights were .•injuriously affected by the- second set of findings. These earlier findings do not appear as a part of the judgment-roll, and the judgment does not in any wise rest upon them. We'do not see how-we can take any notice of them, even if they would have the effect to change the judgment—which they .would not, as they are substantially the same as the later Ones. In the absence of some proper record; showing that there were double findings, ye must presume that the court based its judgment alone on the ■findings in the- judgment-roll, and that the first findings were properly ignored by the court. Prince v. Lynch, supra, is not in point, for there the court changed the findings after judgment. But the court may change or modify findings before judgment without ordering a new trial. It was held in Smith v. Taylor, 82 Cal. 533, that this may. be done; and where there are two sets of findings, and either qr both will support the judg
The judgment should be affirmed.
Belcher, C., and Haynes, C., concurred.
' For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Temple, J., Hensbiaw, J.
