National Bank of California v. Mulford

SHAW, J.

Action to foreclose two mortgages. The facts, so far as necessary to the decision of the case, are as follows: For the purpose of securing the payment of his two promissory notes, the defendant W. L. Mulford executed to his codefendants Boggs and Noyes two mortgages, one upon chattels, the other upon certain real estate, after which he transferred all interest in the real estate mortgaged to defendant Los Angeles Paving Brick Company, appellant herein. Boggs and Noyes transferred the mortgages and notes to plaintiff, who, upon default in the payment thereof, instituted this action, joining W. L. Mulford, the Los Angeles Paving Brick Company, F. A. Noyes and A. W. Boggs as parties defendant, and against each of whom plaintiff asked that a deficiency judgment be docketed in case the proceeds of the sale of the property mortgaged were found insufficient to pay the amount due.

The court made its findings and, in accordance therewith, rendered judgment for plaintiff, decreeing, first, the sale of the chattels, and if the proceeds thereof were inadequate to pay the judgment, then the sale of the real property mortgaged, and directing that if the proceeds thereof were found insufficient to pay the balance of the judgment, costs and expenses of sale, the sheriff, in his return thereof, should

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specify the amount of such deficiency, and the clerk should docket a judgment for the same against the defendants Mulford, Noyes and Boggs; and that plaintiff have execution therefor. Notice of the entry of this judgment was, on December 10, 1909, duly served upon the appellant herein. On December 20, 1909, appellant served upon plaintiff alone notice of its intention to move for a new trial upon the minutes of the court. The motion ivhen made was denied. Defendant appeals from that part of the judgment directing a sale of the real estate described in the mortgage, and from the order denying its motion for a new trial.

Section 659, Code of Civil Procedure, provides that the party intending to move for a new trial must serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or statement of the case. By subdivision 4 thereof, it is provided that, “When the motion is to be made on the minutes of the court, and the ground of the motion is the insufficiency of the evidence to justify the verdict or other decision, the notice of motion must specify the particulars in which the evidence is alleged to be insufficient; and, if the ground of the motion is errors in law occurring at the trial, and excepted to by the moving party, the notice must specify the particular errors upon which the party will rely. If the notice does not contain the specifications here indicated, when the motion is made on the minutes of the court, the motion must be denied.” While the notice served upon plaintiff states that the motion will be made upon the minutes of the court, and in general terms specifies as the grounds thereof “the insufficiency of the evidence to justify the decision,” and “errors in law occurring at the trial and excepted to by defendant,” it wholly fails to specify the particulars in which the evidence is alleged to be insufficient, or the particular errors in law relied upon to support the motion. It therefore follows that if the motion for new trial was made, as indicated in the notice, upon the minutes of the court, the ruling of the court could not have been other than a denial of the motion.