Quackenbush v. Darrough

THOMAS, J.

This is an action to foreclose a mortgage executed by defendants James W. Darrough and Susan E. Darrough, his wife, to plaintiff to secure the payment of a note for the principal sum of one thousand five hundred dollars, dated May 18, 1915, payable on or before five years after date. The defendants Raymond W. Smith and Mary E. Nelson Smith, his wife, are subsequent purchasers of the property from the defendants Darrough, and are made parties to the action for that reason.

All defendants were duly and legally served with summons and complaint. The defendants Darrough defaulted. The defendants Smith appeared and entered demurrer, which was general and special in its terms, and which, after presentation and consideration b,y the court, was overruled. The defendants Smith did not answer, but the judgment-roll does not disclose the filing or entering of their default for not so doing. Subsequently a decree of foreclosure was entered,

[566]

ostensibly against the defendants Darrough, as no mention is made therein of the defendants Smith, except the erroneous recital in the decree that “defendants Raymond W. Smith and Mary B. Nelson Smith not appearing”—when, as a matter of fact, both had appeared by filing a demurrer as aforesaid—and the further recital that they had been duly and legally served with summons, and that all the interest and estate of said defendants so served in said lands and premises, and all their right and title to the same, is subject and subordinate, etc.

The appeal is by the defendants Smith only, and from the judgment on the judgment-roll alone. The sufficiency of the complaint and the validity of the judgment are, therefore, before the court for review.

[1]

That the filing of a demurrer by the defendants Smith constituted an appearance by them is, we think, not debatable.

(Hodgkins

v.

Dunham,

10 Cal. App. 690, [103 Pac. 351];

Dollar