Palm v. Ashton

PULLEN, P. J.

This is an action to foreclose a mortgage upon certain real property executed by Ralph Lake Lloyd, who, among others, including appellants herein, were named defendants in the complaint filed by respondents.

The summons and complaint was served upon all of the named defendants with the exception of Ralph Lake Lloyd, the maker of the note and mortgage here in issue, upon whom service was not effected, and at the trial the action was dismissed as to him and all of the remaining defendants defaulted except appellants herein, who appeared by answer.

The complaint and supplemental complaint alleges that plaintiffs loaned to defendant Ralph Lake Lloyd the sum of $3,500, and as evidence thereof he executed a note and mortgage covering certain described real property situated in the county of Los Angeles. The complaint then alleged default in the payments as called for in the note and asked that the mortgage be foreclosed.

It is further set forth that the other defendants claimed some right, title, lien or interest in or upon the real property described in the mortgage, but that such claim was inferior, subsequent and subordinate to the lien of plaintiffs’ mortgage. Then followed an allegation of the expenditure of certain moneys to protect the property and prayed that defendants be required to set forth their claims, and for the usual decree of foreclosure. Appellants answered the complaint and upon information and belief denied all of the allegations of the complaint and supplemental complaint except as to their marital status, and admitted by failing to deny, the paragraph alleging that they claimed some right or interest in the property subordinate to the lien created by the mortgage.

At the trial appellants orally moved for judgment on the pleading on the ground that the complaint did not state a cause of action, which motion was denied, and appellants offering no evidence, judgment,- without a deficiency, was

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rendered for plaintiffs, from which judgment appellants prosecute this appeal.

Appellants here urge the following grounds:

(a) That the record is incomplete and insufficient to confer jurisdiction upon a trial court to render a decree of foreclosure in that the record shows that the owner of the estate or the mortgagor was not before the court.