Nelson v. Geiss

[248]

MILLER, J.,

pro tem.

This is an appeal from a judgment rendered in an action to quiet title, refusing to quiet appellant’s title against respondent’s.

On January 2, 1912, Irwin Bechtel and his wife were the owners of certain real property in Los Angeles, California, to which appellant is seeking to quiet his title. On that date the Bechtels mortgaged said property to Michael Geiss for $1,000; this mortgage became due and payable January 2, 1915. In 1914 Geiss disappeared and has never since been heard from. Before his disappearance, however, he left the note and mortgage with the Guaranty Trust and Savings Bank of Los Angeles, for collection, and on December 18, 1918, that bank, on proceedings had under section 1822 of the Code of Civil Procedure, was duly appointed trustee on behalf of Michael Geiss, a missing person. On December 26, 1918, such trustee, in the name of and on behalf of Geiss, commenced an action against Irwin Bechtel et al. for the foreclosure of said mortgage. On February 11, 1919, answer by one of the defendants was filed. Nothing further was done in the action until March 20, 1924, when the action was dismissed. On July 3, 1924, an order vacating the order of dismissal was made and entered. Subsequently, on July 8, 1924, the default of certain defendants was entered. On July 10, 1924, a motion to dismiss the action was granted, and the order so dismissing the action was entered in the minutes of the court, and purported to dismiss the action as to all defendants. On July 11, 1924, in another department of the superior court, the trial of said action, was set for June 8, 1925. On September 11, 1928, notice of motion to set the case for trial October 1, 1928, in still another department of the superior court was given, and said case was reset, and on November 5, 1928, an order was made vacating the last order setting the case for trial, and no further proceedings were had therein.

On February 1, 1925, appellant became the owner of, and went into the possession of, the property herein involved, and on May 29, 1925, brought this action to quiet his title to the real property here involved. Respondent bank answered on behalf of Michael Geiss, a missing person, and the action was tried on August 31, 1928, and judgment went for respondent. Respondent Security Trust and Sav