Butchart v. Moorhead

THOMPSON (R. L.), J.

This is an appeal on the part of certain defendants from a decree foreclosing a mortgage. In filing an amended complaint the names of Paul G. Moorhead and wife were eliminated and they were abandoned as defendants. They, however, voluntarily 'appeared and answered without securing permission of the court. On motion duly made their answer was stricken from the record and the action dismissed as to them. From this order they failed to appeal. No deficiency judgment was sought or secured. They were not necessary parties, having disposed of their interest in the property. The appeal was therefore ineffectual as to these defendants.

The plaintiff as assignee of a note and mortgage instituted this action of foreclosure against Paul G. Moorhead and wife, who were the makers of the note and mortgage.

[661]

Many others were also made party defendants. The original makers of the instruments had parted with their interest in the mortgaged property. Separate demurrers in behalf of the respective defendants were filed, presented and sustained. In due time an amended complaint was filed, in which neither Paul Gf. Moorhead nor his wife was included as a defendant. Their names were purposely omitted therefrom. The amended complaint was not served upon them. No decree against them was sought and no deficiency judgment was asked for or recovered. Nevertheless, the Moor-heads voluntarily appeared and without leave to answer or intervene filed a separate demurrer and answer to the amended complaint attempting to set up a special defense charging the mortgagee, Builders Mortgage Company of Los Angeles, with exacting usurious interest and failure to pay to the mortgagors nine thousand five hundred dollars of the principal sum for which the note and mortgage were executed. These defenses were made by none of the other appellants. To this answer the plaintiff demurred and at the same time gave notice of motion to strike it from the records and dismiss the action as to these defendants. On March 15, 1927, this motion was granted. The court then ordered that the “motion to dismiss action as to defendants Moorhead is granted.” From this order no appeal was takén. The cause was tried upon the issues presented by the answers of the other defendants, and a decree of foreclosure was rendered in favor of the plaintiff for the principal sum represented by the original loan, no part of which had been paid, together with deferred interest, costs, taxes paid, a street assessment and counsel fees. The findings disregarded the issues tendered by the Moorhead answer which had been stricken from the record. No judgment was rendered against them and no deficiency judgment was awarded. The decree of foreclosure was entered April 19, 1927. [2] The notice of appeal was from “the judgment therein entered in the said Superior Court on the- day of -, 1927, and from the whole thereof.” This notice of appeal was served and filed May 16, 1927. This appeal does not purport to have been taken from the order and judgment striking the Moorhead answer from the records and dismissing the action as to them. Indeed, the notice of appeal was too late to become effectual for that