Everts v. Blaschko

MARKS, J.

This is an appeal from a judgment entered after granting a motion to dismiss the action.

This action was brought to recover judgment against defendant for the deficiency- remaining after exhausting the security, consisting of a deed of trust on real property, given to secure the payment of a promissory note from defendant to plaintiff. The complaint was filed September 14, 1935. Defendant appeared by demurrer on October 5, 1935, and also filed her motion to dismiss on the same day. As far as the record shows, the trial judge did not rule on the demurrer.

The notice of motion to dismiss specified the following grounds upon which it would be made:

“1. That said action is barred by the order of this court made heretofore in an action filed in the above entitled court, wherein this plaintiff was the plaintiff and the defendant herein was the defendant, and for the same cause of action in all particulars as the cause set forth in the complaint on file in this action, said action so above mentioned being numbered 15765, filed in the office of the county clerk of Imperial County, California, on August 19, 1933, and

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an order of dismissal being made by this court therein on September 4th, 1935, upon the motion of this defendant herein, who was the defendant in said action, said order of dismissal being entered in the minutes of this court in Department 2, book 39, page 415.

“2.

That said action above entitled was not filed within the time prescribed by sections 337 and 580a, C. C. P. of California, nor has there been any compliance with the requirements of sections 2924 et seq. of the Civil Code of California, and of chapter 642, Statutes of 1933, as shown upon the face of the complaint herein.”

The grounds specified in paragraph two, above quoted, are not included within the grounds upon which a motion to dismiss an action may be made. (Secs. 581 to 583, inclusive, Code Civ. Proc. ) Furthermore, the note and deed of trust were dated October 15, 1929, the foreclosure proceedings were had in 1933, and this action was instituted on September 14, 1935. Under these circumstances the code sections cited by defendant, except possibly section 337 of the Code of Civil Procedure, the application of which we do not need to decide, cannot avail her in this action.