Craiglow v. Williams

THOMAS, J.

This is an action brought to recover the sum of two thousand one hundred dollars, with interest, upon a promissory note made, executed, and delivered by defendants to plaintiff, and for the foreclosure of a chattel mortgage executed by the defendants Williams to secure the payment of said note.

Summons and complaint were duly and legally served upon all defendants. Defendants Williams defaulted. The defendant Sterne interposed a demurrer to the complaint, which was overruled, after which he served and filed his answer herein. After entry of the default of the defendants Williams a decree of the court was entered wherein it was found that the defendants Williams were personally liable to the plaintiff for the principal, interest, attorneys’ fees, and costs of suit, and the mortgaged property was ordered sold and the proceeds thereof applied to the payment of said indebtedness. The property was accordingly sold, leaving a deficiency of balance still due the plaintiff of $1,796.70.

It will be observed that the plaintiff proceeded with the action, took judgment of foreclosure and made a sale of the mortgaged property without trying any of the issues raised by the answer of the defendant Sterne.

Thereafter the plaintiff served and filed .a “supplemental complaint,” setting out the default of the defendants Williams, the finding of personal liability against them, and each of them, as to the said principal indebtedness already set forth, including the deficiency, and asking for judgment against the defendant Sterne for the amount of such deficiency. Defendant Sterne interposed a demurrer to this

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“supplemental complaint,” and at the same time filed an answer thereto. This demurrer was sustained, without leave to amend, and thereupon judgment was ordered and entered in favor of the defendant Sterne, and against the plaintiff for costs. This appeal is from the order sustaining the demurrer and the judgment so entered.

Appellant contends that he. does not know upon what theory the trial court based its decision, “unless it conceived all the defendants in the action to be joint obligors, and that hence only a joint judgment, instead of a joint and several judgment, could be rendered,” and then argues that, if the latter, clearly under the provisions of section 579 of the Code of Civil Procedure defendant Sterne could be proceeded against and a judgment rendered against him after default of the defendants Williams; and, if the former, the entry of a default judgment against the defendants Williams for a deficiency, as already stated, was null and void and should have been so treated by the court.