Hyperlawhypertext legal databasebeta Hawley v. State Assurance Co. 182 Cal. 111

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Hawley v. State Assurance Co.

182 Cal. 111 Court Cal. Decision date 1920-01-26 Docket L. A. No. 4759 English

Delivered by WILBUR, J.

Contents

Majority

p. 111
[L. A. No. 4759.
In Bank.
January 26, 1920.]
ANNA M. HAWLEY et al., Appellants, v. STATE ASSURANCE COMPANY, etc., Respondent.

Headnote

HI Action to Set Aside Decree of Foreclosure—Appeal from Judgment—Insufficient Becord.—On appeal from a judgment in an action to set aside a decree in a previous action for the foreclosure of a mortgage upon the ground that the owner of the mortgaged premises was never served with summons in the foreclosure proceeding and that the appearance entered in her behalf was unauthorized, where no portion of the pleadings or findings in the foreclosure case or in the ease at bar is printed in appellants’ brief, the record being brought up under section 953a et seq. of the Code of Civil Brocedure, appellants have failed to print sufficient of the record to establish any error on the part of the trial court.
[2] Mortgage—Foreclosure—Parties—Grant by Mortgagor—Scope of Decree.—A decree in an action for the foreclosure of a mortgage is binding upon the mortgagor, although not served with process, where prior to the commencement of the action the mortgagor had conveyed the property by grant deed, which according to the records showed no reservation of any interest in the premises, and the grantee appeared and defended the action.
p. 112
[3] Action to Set Aside Foreclosure Decree—Meritorious Defense to Mortgage.—In an action by a mortgagor to set aside a decree of foreclosure upon the ground that she was not served with summons and that the appearance on her behalf was unauthorized, she must show that she has a meritorious defense to the encumbrance.
APPEAL from a judgment of the Superior Court of Los Angeles County. Pat R. Parker, Judge Presiding.
Affirmed.
The facts are stated in the opinion of the court.
Hamilton A. Bauer for Appellants.
Lloyd W. Moultrie for Respondent.

The record in this case is made up under section 953a et seq. of the Code of Civil Procedure. The appellants do not print in their brief the pleadings, findings, or judgment, nor any portion thereof; nor is there more than a fragmentary statement of some of the evidence. From the statement in appellants’ brief it appears that the action is to set aside a decree in a previous action for the foreclosure of a mortgage, upon the ground that appellant Anna M. Hawley, the owner of the property mortgaged, was never served with summons in the foreclosure proceeding, and that the appearance entered in her behalf was unauthorized. No portion of the pleadings or findings in the foreclosure ease is printed in appellants’ brief. [1] Under these circumstances appellants have failed to print sufficient of the record to establish any error on the part of the trial court. Notwithstanding this, we have examined the typewritten transcript sufficiently to determine that there is no mérit in the appeal.

Appellants allege that Anna M. Hawley is the owner of the property in question “subject only to a certain mortgage made by Horace Cline and Mildred L. Cline and a deed of trust executed to Libbie H. Bathriek.” The findings are that previous to the bringing of the foreclosure proceedings Mrs. Hawley had conveyed the property by grant deed, on June 6, 1907, to Libbie H. Bathriek, which deed was on that date duly recorded, and that appellant Anna M. Hawley did not thereafter own the property. Proceeding was instituted by respondent to foreclose the above-mentioned mortgage of the

p. 113
Clines, appellants’ grantors, and also to foreclose a deed of trust, executed by Mrs. Bathrick after the conveyance to her, to secure an obligation of appellant C. O. Hawley. In that action, the record owner, Mrs. Bathrick, appeared and defended, and judgment, was rendered against her. [2] This decree was sufficient to foreclose any interest of the appellant Mrs. Hawley, reserved by her when she conveyed the property to Mrs. Bathrick, not shown by the record. (Code Civ. Proc., sec. 726.) [3] Furthermore, the appellants do not show that they have any meritorious defense to the encumbrances foreclosed. (Gregory v. Ford, 14 Cal. 138 , [ 73 Am. Dec. 639 ]; Gibbons v. Scott, 15 Cal. 284 ; Matson v. Batto & Sons, 173 Cal. 800 , [ 161 Pac. 1144 ], and cases cited; Lee v. Colquhoun, 175 Cal. 16 , [ 164 Pac. 894 ] ; 2 Freeman on Judgments, 4th ed., secs. 495, 498; Black on Judgments 2d ed., secs. 376, 377; High on Injunctions, 4th ed., secs. 126, 229a; Janes v. Howell, 37 Neb. 320 , [ 40 Am. St. Rep. 494 , 55 N. W. 965 ] ; Thomas v. West, 59 Wis. 103 , [ 17 N. W. 684 ] ; McDonald v. Cawhorn, 152 Ala. 357 , [ 44 South. 395 ] ; Hockaday v. Jones, 8 Okl. 156 , [ 56 Pac. 1054 ]; Jeffery v. Fitch, 46 Conn. 601 ; Wilson v. Shipman, 34 Neb. 573 , [ 33 Am. St. Rep. 660 , 52 N. W. 576 ] ; Meyer v. Wilson, 166 Ind. 651 , [ 76 N. E. 748 ], and cases cited; Goon v. Jones, 10 Iowa, 131 ; Newman v. Taylor, 69 Miss. 670 , [ 13 South. 831 ]; Masterson v. Ashcom, 54 Tex. 324 .)

Judgment affirmed.

Shaw, J., Lennon, J., Lawlor, J., Olney, J., and Angellotti, C. J., concurred.

Rehearing denied.

All the Justices concurred.

Cases cited

Statutes and regulations cited