Berkeley Bank of Savings & Trust Co. v. Miller

[316]

LENNON, P. J.

This is an appeal by the defendants, Herman Murphy, Ella M. Murphy, and the Progressive Investment Company, from a judgment and order denying a new trial in an action wherein a decree was made and entered, foreclosing a real property mortgage executed by the defendant Herman Murphy to the corporation plaintiff, as security for the payment of a promissory note in the sum of six thousand five hundred dollars. All of the other defendants were made parties to the action because, as alleged in the complaint, they had or claimed to have some interest in the mortgaged premises which was subsequent and subordinate to the lien of the mortgage.

The execution and nonpayment of the note and mortgage were admitted hy the answers of each and all of the defendants. The defendants William Miller, G. A. Murphy, George C. Richards, and the Black-White Company, by their answers admitted that whatever interest they had in the mortgaged premises arose subsequent to the execution of the mortgage out of attachments or judgment liens in other actions which they had instituted against the defendant Herman Murphy.

When the case was called for trial each and all of the defendants stipulated in open court that any and all claims other than those of the appealing defendants to the surplus, if any, that might remain after the satisfaction of the mortgage need not be determined .and disposed of in the present action, and that such claims should await and be subject to adjudication in another action instituted and then pending between the several defendants for the purpose of determining the extent and priorities of their respective claims and liens against the mortgaged premises. Accordingly the lower court proceeded to a hearing of the action only upon the issues raised by the joint answer of the appealing defendants; but in its findings and decree of foreclosure provided that the surplus, if any, remaining from the sale of the mortgaged premises should be deposited with the court to await judgment in the other action pending.

The question of the sufficiency of the findings and judgment in so far as they affect the rights of the nonappealing defendants is not before us upon this appeal; and obviously such question cannot concern the appealing defendants. The judgment as a whole is not inherently void; and assuming,