143 P. 52 | Cal. Ct. App. | 1914
This is an appeal upon the judgment-roll alone from a judgment entered in favor of the defendant in an action of unlawful detainer. All of the material allegations of the plaintiffs' complaint were admitted by the failure of the defendant's answer to deny them. The defendant, however, as a defense to the action pleaded the existence of a mortgage executed by the defendant to the plaintiffs as security for the rent reserved in the lease under which the defendant held and occupied the premises in controversy.
The court below, in substantial accord with the admitted allegations of the complaint, made its findings of fact in favor of the plaintiffs in so far as concerned the execution of the lease and the breach of the covenant to pay the rent reserved; but further found that a mortgage given as security for the payment of the rent had not been resorted to and exhausted by the plaintiffs prior to the institution of the present action; and from the latter finding deduced the conclusion of law "that by reason of the provisions of section
The code section referred to provides that "There can be but one action for the recovery of any debt, or for the enforcement of any right secured by mortgage upon real or personal property . . ." (Code Civ. Proc., sec.
It follows that the defense interposed and relied upon was not as a matter of law available to the defendant. The finding with reference to the execution and existence of the mortgage was therefore immaterial, and may be disregarded. The defendant having admitted and the lower court having found the execution of the lease, and the failure of the defendant to pay the rent reserved therein after the statutory notice to pay or surrender possession of the leased premises, judgment should have been entered for the plaintiffs.
The judgment is reversed, with instructions to the lower court to render and enter judgment in favor of the plaintiffs upon and in keeping with the findings as made relating to the execution and breach of the lease.
Richards, J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 5, 1915.