Richardson v. Superior Court

CRAIG, J.

The owners of certain real property instituted suit to declare usurious loans thereon, and at the same time were made defendants in a suit to foreclose a mortgage on said property, which said suits were consolidated for trial. The court below determined that, although usurious, the note was held by an innocent purchaser for value, that the owners were not entitled to the relief prayed ■by them, and decreed foreclosure, from which an appeal was perfected. The sale was enjoined pending appeal, provided a bond in the penal sum of $10,000 be furnished in accordance with said decree. Such undertaking having been held insufficient, another in lieu thereof was filed, and these undertakings were made grounds for the instant attack upon the restrictive provisions of said decree of foreclosure. The plaintiff, having obtained a writ of enforcement, insisted that said injunction order was ineffectual, and applied for a writ of

mandamus

requiring a sale of the mortgaged property.

Said decree contained the usual form of recitals, that amounts specified were due the plaintiff, and directing a sale of the property, that the proceeds of sale be applied to said obligations, that the defendants and subsequent lien-holders be barred and foreclosed from equity of redemption from the delivery of a deed, that the purchaser be let into possession, and that judgment be entered for any deficiency. Contemporaneously, nevertheless, it was further ordered that “upon the solicitation and request of defendants . . . an injunction pending appeal shall issue herein restraining the mortgage foreclosure sale in the above-entitled cause upon appeal from the judgment of the court in this cause, provided the above-named defendants in this action diligently and in good faith prosecute their appeal from said judgment in this cause and in addition thereto within ten (10) days from and after the signing of these findings the above named defendants obtain and file a good and sufficient surety bond in this cause in the sum and amount of $10,-000.00, and in a form and content as shall be approved by this court, protecting and indemnifying the Fidelity Sav

[737]

ings and Loan Association as provided by section 945 of the Code of Civil Procedure.” The undertaking furnished pursuant to such decree recited jurisdictional facts, rendition of judgment in foreclosure, and that the defendants desired to appeal; that in ‘ consideration of the premises and of the issuing of said injunction pending said appeal, the surety undertakes in the sum of $10,000.00 and promises that