Griffin v. Compere

Plaintiff brought this action against defendants to recover a deficiency judgment on a promissory note secured by a chattel mortgage after private sale of the security. Defendants appeal on the judgment roll alone.

In their five-page opening brief appellants urge that there was a prior foreclosure action, which was later dismissed, and contend that the bringing of such action, under section 726 of the Code of Civil Procedure, constituted a binding election of remedies that barred, as a matter of law, the bringing of the present action for the deficiency remaining after a subsequent private sale of the security. When respondent, quite properly, pointed out that the facts to support this defense,

The defense here sought to be raised—i.e., election of remedies—was not pleaded by appellants in the trial court, although there is a reference to the prior foreclosure action in the pleadings of other defendants not parties to this appeal. It is incumbent, of course, on appellants to show error from the record. (Utz v. Aureguy, 109 Cal.App.2d 803 [ 241 P.2d 639 ]; Nulsen v. Nulsen, 84 Cal.App.2d 306 [ 190 P.2d 316 ].) This, they have failed to do.

Moreover, even if the record did show, which it does not, that there had been a prior foreclosure action that was dismissed, that would not constitute, as a matter of law, such an election of remedies so as to preclude a later private sale and a suit for a deficiency. (Commercial Centre Realty Co. v. Superior Court, 7 Cal.2d 121 [ 59 P.2d 978 , 107 A.L.R. 714 ]; Nelson v. Bank of America, 76 Cal.App.2d 501 [ 173 P.2d 322 ]; Baumann v. Harrison, 46 Cal.App.2d 84 [ 115 P.2d 530 ]; F lack v. Boland, 11 Cal.2d 103 [ 77 P.2d 1090 ]; Carpenter v. Hamilton, 59 Cal.App.2d 146 [ 138 P.2d 353 ]; Carpenter v. Title Ins. & Trust Co., 71 Cal.App.2d 593 [ 163 P.2d 73 ]; see, generally, 6 A.L.R.2d 10 .)

The judgment appealed from is affirmed.

Bray, J., and Wood (Fred B.), J., concurred.