Fresno Investment Co. v. Russell

STURTEVANT, J.

This is an action brought to foreclose a mortgage; the plaintiff had judgment and the defendant appealed. The plaintiff’s complaint is in the ordinary form to foreclose a mortgage. The note and mortgage therein set forth are the note for $198.93 and the mortgage securing the same which are referred to in the opinion this day filed,

Russell

v.

Penniston et al., ante,

p. 492 [203 Pac. 813]. In his answer the defendant Russell set forth certain denials. Then, as his first affirmative defense, he alleged, in slightly different language and in a consolidated form, the allegations set forth in the first count and the second count of the complaint in

Russell

v.

Penniston, supra,

and added the further averments that the note and mortgage were given to secure the payment falling due in October, 1919, and not otherwise. The defendant then pleaded in abatement the pendency of that case,

Russell

v.

Penniston.

The trial court tried the instant case at the same time with the case entitled

Russell

v.

Penniston, supra.

Thereafter it made findings in which all of the material allegations were found in favor of the plaintiff and judgment was entered accord

[497]

ingly.

[1]

At this time the appellant specially presents his plea in abatement based on another action pending. It will be noted that the plaintiff in this action was one, and only one, of the defendants in the other case. It will be noted also that this case is an action to foreclose a mortgage, and that the other case,