Hibernia Savings & Loan Society v. Laidlaw

HARRISON, P. J.

Action for the foreclosure of a mortgage executed to the plaintiff by Julia A. E. Hinz, since deceásed. Judgment was rendered in favor of the respondent, and the plaintiff has appealed from the judgment upon the judgment-roll, including a bill of exceptions.

The facts presented at the trial as appears from the record are as follows: September 19, 1903, the property described in the complaint was the community property of said Julia A. E. Hinz and her husband, John J. A. Hinz, and on that day the said Julia executed and acknowledged in proper form and caused to be duly recorded a declaration of homestead thereon. The property was at that time subject to a mortgage, which had been executed to the plaintiff by the husband in 1890 to secure his promissory note for $3,000. Prior to the maturity of this note, viz., November 13, 1894, the said John and Julia executed to the plaintiff their joint and several promissory note for the sum of $3,000, payable in one year thereafter, and for the purpose of securing its payment executed and delivered to the plaintiff a mortgage of the said property. November 25, 1894, the husband died testate, devising the premises in question to his wife Julia. October 19, 1899, Julia executed to the plaintiff the note and mortgage set forth in the complaint herein in renewal of the note and mortgage made by herself andhusband. She died February 18,1901, leaving a last will and testament, wherein the respondent, Auguste Laid-law, was appointed executrix. Her will was admitted to probate March 18, 1901, and letters testamentary on her estate were on that day issued to the said executrix. Thereafter, upon the order of the court, due and legal notice was given by the executrix to the creditors of Julia to present to her for allowance their claims against the estate of her testatrix. The plaintiff did not present to her any claim upon the note or mortgage set forth in the complaint, but after the time for presentation of claims had expired brought the present action

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for the foreclosure of the mortgage and sale of the property in satisfaction of the note.

1. The defendant filed an answer to the complaint, to which the plaintiff demurred, and its demurrer was sustained with leave to the defendant to amend. An amended answer was thereafter filed, and the cause was tried upon the issues raised thereby. The appellant urges, as one of the grounds for the reversal of the judgment, that the demurrer should have been sustained without leave to amend, and it also urges that the defendant should not have been allowed to set up in her answer a defense different from that presented in her original answer* There was no error in the order allowing the defendant to amend her answer. If the facts relied upon for a defense were either defectively or erroneously stated therein, and it did not appear that the defect or error was incurable, the court was justified in giving her an opportunity to properly present the facts. When the amended answer was filed the plaintiff made no motion to strike out that portion claimed by it to be a new defense, but went to trial upon the issues thereby raised. It cannot, therefore, after waiting for the judgment, make this objection to the character of the answer upon an appeal therefrom. It may be added that if there was a defense to the action which the defendant did not set forth in her original answer, even though she had no knowledge of such defense, or of the facts constituting the same, until after the order made sustaining the demurrer, it would have been the duty of the court, upon her request, to allow her to amend her answer in order that such defense might be presented.