Williams v. Gordon

Action to foreclose mortgage. Judgment in favor of plaintiffs from which two of the defendants, John A. and Clara H. Gordon, appeal. Said defendants, the appellants herein, appeared in said action and filed an answer to the complaint. The plaintiffs thereupon moved to strike out portions of said answer on the ground that the same were sham, irrelevant, and immaterial, and also filed a demurrer to said answer on the ground that it failed to set forth facts sufficient to constitute any defense to plaintiffs’ cause of action. The court granted said motion and sustained said demurrer. Upon said defendants’ failure to file any further or amended answer, their default was entered and later judgment was given against them by default. They now claim on this appeal that the trial court erred in granting plaintiffs’ motion to strike out portions of said answer and in sustaining the demurrer to their answer, for the reason that said answer stated facts which, if true, were sufficient to constitute a valid defense to plaintiffs’ cause of action.

Neither is there any merit in that part of the answer" in which the defendants deny that plaintiffs elected to declare the principal due. The commencement of the action is sufficient in itself to show such election. (Bank of Commerce v. Scofield, 126 Cal. 156 [ 58 Pac. 451 ]; Trinity County Bank v. Baas, 151 Cal. 553 [ 91 Pac. 385 ].)

It was next alleged in the answer that the plaintiffs were indebted to said defendants on an unliquidated demand amounting to $299, which amount was more than the amount of said two delinquent installments of interest, and that said demand was the subject of another suit in a justices’ court between said parties at the time said two installments of

It is finally alleged by defendants in their said answer that they tendered to plaintiffs the full amount of said two installments of interest together with compound interest thereon, but that the same was refused. It appears, however, from said answer that this tender was made after this action had been commenced. It needs no citation of authority to show that such a tender could be of no avail to defendants. Defendants bitterly complain that the institution of this action is the result of ill feeling on the part of plaintiffs toward defendants arising from the controversy between said parties in said justices’ court action. With this complaint this court cannot concern itself. It would appear, however, that a complete answer to such charge appears in the record which shows that no steps were taken by plaintiffs to foreclose their mortgage until more than a month after the second quarterly installment of interest had become delinquent, and that more than four months intervened between the time the first delinquent installment of interest fell due, after which plaintiffs might have exercised their option to declare the whole note due and have brought this action, and the date when this action was in fact commenced. A forbearance of over four months by plaintiffs may well be considered sufficient to absolve them from the charge that they were actuated by ill will or malice in the institution of this action. However, we are not disposed to penalize the appellants, as suggested by respondents, by reason of an appeal which, without any strained construction of the law or the facts, might well be held to be frivolous. Had notice been given appellants of the delinquency of said interest within a reasonable time before suit was brought they might, and probably would, have paid the same, as they had paid all previous installments of interest.

Judgment affirmed.

Preston, J., and Seawell, J., concurred.