El Centro Grain Co. v. Bank of Italy National Trust & Savings Ass'n

SCOVEL, J.,

pro tem.

This is an action wherein the plaintiffs seek to restrain foreclosure of a trust deed by defendants and asking the court for an accounting as to amounts paid upon the note secured by the deed of trust and sale of the property described in the deed of trust by a court commissioner.- The case was tried upon an agreed statement of facts and submitted to the court for decision. Thereafter the court filed a document entitled “Directions for Findings and Judgment”, wherein he stated that he thought the defendants were- entitled to a stated amount upon the note and that he should appoint a commissioner to make the sale; that the defendants were entitled to judgment for the amount indicated; that the court appoint a commissioner to sell the property covered by the trust deed; that a period of sixty days be allowed for redemption and that further proceedings under the trust deed be permanently enjoined. Defendants’ attorney was requested to draw findings. Before findings were prepared or judgment entered plaintiffs moved “to reopen the above entitled ease for further proceedings and for the purpose of bringing in new and additional parties thereto, and filing the additional stipulation of facts served herewith”. The motion was granted and the case reopened. Thereafter the court filed another document entitled “Memorandum De

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cisión” in which he stated that he was satisfied the court had no power to limit the period of redemption to less than one year on foreclosure of a trust deed by action in which the sale is made by a commissioner named by the court but that he did have power to allow a short period before sale in which to pay the amount due on the note; that judgment should be entered determining the amount due and allowing the plaintiffs thirty days within which to pay the same and _ decreeing that if such payments were not made within the time limited the injunction be dissolved and the sale proceed under the provisions of the trust deed. Counsel for defendants were requested to draw findings. Thereafter findings were waived and judgment was entered in accordance with the memorandum decision. From this judgment plaintiffs appeal, asserting that the judgment is erroneous for the reason that the court under the law had the right to allow any period for redemption after a sale by a court commissioner which in its judgment was reasonable and proper, not exceeding one year. That the judgment was given under a misapprehension as to the law and therefore erroneous.