Roberts v. Title Insurance & Trust Co.

CONREY, J.

In this action for equitable relief plaintiff petitioned pursuant to the Moratorium Act (Stats. 1935, chap. 348, p. 1208 et seq.) for an order of court to postpone or stay a threatened sale of real property under trust deed foreclosure. Defendants are respectively the trustee and beneficiary named in the trust deed and the alleged assignee of the beneficiary. The petition alleges that the trust deed was executed by plaintiff on September 20, 1932, to secure her promissory note for $9,000 and that notice of default (sec. 2924, Civ. Code) was recorded April 10, 1935, the date of threatened sale being August 6, 1935. Defendants filed no formal appearance, either by answer or demurrer, but when the case was called on August 29, 1935, their counsel objected to the hearing. The court sustained the objection and ordered that the petition be dismissed. From this order plaintiff appealed and the cause is now before us on motion of defendants to dismiss said appeal or to affirm the judgment.

The trial court correctly ruled that it was without jurisdiction to hear the petition for the reason that it was not filed within the time required by the act, section 2 (Stats.

[375]

1935, p. 1209). Said section provides: “At any time

within ninety days

from and after the

recording of notice of default

under section 2924 of the Civil Code, or at any time

within thirty days

after the

effective date of this act,

but not later than January 1, 1937, the trustor under any deed of trust upon real property . . . may file a petition . . . praying for an order postponing the sale of such property ...” The act was approved by the Governor on June 21, 1935, and was declared to be an urgency measure effective immediately. Plaintiff’s petition was filed July 26, 1935, more than thirty days thereafter, and more than ninety days after the date of recording the notice of default (April 10, 1935). Appellant’s contention that the petition could be filed at any time prior to January 1, 1937, is without merit. Obviously the clause of section 2, “ ... but not later than January 1, 1937”, fixes the termination of the period during which the act is to be in effect and it may not be construed as permitting the filing of petitions at any time prior to such date, regardless of other limitations.