Perry v. West Coast Bond & Mortgage Co.

California Court of Appeal Feb 2, 1934 No. Docket No. 9334.Published

Before: Nourse

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Holding. The court held that the initial judgment, despite being labeled "interlocutory," was a final determination of the parties' rights and liabilities, thereby authorizing the issuance of execution on the money judgment contained therein.

Issues

Whether the initial judgment, styled as "interlocutory," constituted a final determination of the parties' rights and liabilities.
Whether the complaint stated a cause of action to stay execution on the money judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Here the so-called interlocutory decree was final as to the determination of all issues of fact and law which were then in controversy.”

“This first decree was a complete and final determination of-the rights of the parties”

“the two judgments are independent to the extent that the first was a final determination of the issues then presented and, as such, finally adjudged this plaintiff’s liability for the deficiency and for damages for retention of the property.”

NOURSE, P. J.

Plaintiff and her seven associates had defaulted upon their obligation to pay to the defendant a promissory note in the sum of $50,000 and the real property covered by the deed of trust as security for the note was

[558]

sold pursuant to the terms of the trust deed. Thereafter the defendant herein commenced an action against this plaintiff and her associates to recover the deficiency due after the trustee’s sale. The makers of the note then commenced an action against the Mortgage Company to have an involuntary trust declared in the property because of alleged irregularities in the sale. Soon thereafter the Mortgage Company commenced an action against the makers of the note in unlawful detainer and for damages for the detention of the property. These three actions were consolidated for trial, whereupon the parties entered into a stipulation in writing agreeing that an interlocutory judgment in all three cases should be entered forthwith decreeing that (a) the Mortgage Company was the owner of all the real property involved; (b) the makers of the note were guilty of unlawful detainer of said property; by which (c) the Mortgage Company was damaged in the sum of $2,201.64; (d) the Mortgage Company have judgment against the makers of the notes for $19,080.53, the deficiency due on the promissory note, which sum was to be added to the item of damages and interest and judgment be entered for the full sum of $21,660.59; (e) the makers of the note take nothing by reason of their action; (f) a writ of restitution issue forthwith to the Mortgage Company; (g) in the event that the makers or any of them should redeem before December 15, 1931, the Mortgage Company would reconvey and file a satisfaction in full; (h) in the event of their failure to redeem before that date the Mortgage Company shall have judgment entered “adjudging that (the makers) have and each of them has failed to pay . . . and . . . has no right, title, claim or interest in or to the said real property . . . and no further right to redeem the same ...” A judgment was duly entered in full accord with this stipulation and was styled “interlocutory judgment”.

The property was not redeemed by December 15, 1931, and thereafter, on motion of the Mortgage Company, a final judgment was entered in accordance with this stipulation adjudging that the redemption price had not been paid and that the makers of the note had no further title or interest in the real property and no further right to redeem. After the entry of this second judgment the Mortgage Company caused execution to issue on the money judgment, which is

Perry v. West Coast Bond & Mortgage Co.

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NOURSE, P. J.

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