Hines v. Miller (1899) · DecisionDepot

Hines v. Miller

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Nov 16, 1899 No. Sac. No. 558.Published

Before: Harrison

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Holding. The court held that a judgment in a lien foreclosure action is not an improper personal judgment where it directs the sale of property first and only authorizes the docketing of a deficiency judgment after the sheriff's return.

Issues

Whether the trial court was authorized to render a personal judgment against defendants prior to the sheriff's return of a deficiency sale under section 1194 of the Code of Civil Procedure.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The judgment itself was not enforceable as a personal judgment against the appellants, except for such deficiency as might be shown upon such return.”

Synopsis

APPEAL from a judgment of the Superior Court of Tuolumne County. G. W. Nicol, Judge.

The plaintiffs were laborers upon a quartz mining claim, under a per diem contract for wages payable at the end of each month. The claims of lien were filed thirty days after the cessation of labor of each claimant. Further facts are stated in the opinion of the court and in the opinion rendered upon the former appeal. (Hines v. Miller, 122 Cal. 517.)

[684]

HARRISON, J.

—Judgment was rendered against the appellants herein upon their default for failure to answer the complaint, and they have appealed therefrom upon the judgment-roll. An appeal from the same judgment, taken by certain other defendants who had answered the complaint, was considered by this court

(Hines v. Miller,

122 Cal. 517), and the judgment was affirmed. In the opinion then given the character of the action is sufficiently stated, and need not be here repeated.

The present appeal is urged upon the ground that under the provisions of section 1194 of the Code of Civil Procedure, the court was not authorized to render a personal judgment against the defendants except for such deficiency as might appear from the sheriff’s return after his sale of the property charged with the lien. That section provides: “Whenever in the sale of the property subject to the lien there is a deficiency of proceeds, judgment may be docketed for the deficiency in like manner and with like effect as in actions for the foreclosure of mortgages.”

A proper construction of the judgment in the present case shows that it does not violate the provisions of this section. After declaring “that judgment be, and the same is hereby, entered in favor of plaintiffs and against defendants” in certain specified sums, and that the liens of the plaintiffs upon the mining claim be and the same are hereby foreclosed against the defendants, it directs that said property be sold by the sheriff in the manner provided by law, and, “if the amount derived from the sale of said property be not sufficient to pay each of the plaintiffs in full, then upon the coming in of the return of the sheriff of said county on the said sale the clerk of the court docket the judgment for such deficiency against the defendants”—naming them. Hnder these provisions there could be no judgment docketed against them until after a sale by the sheriff and his return showing a deficiency of proceeds. The judgment itself was not enforceable as a personal judgment against the appellants, except for such deficiency as might be shown upon such return.

(Central etc. Co. v. Center,

107 Cal. 193. See, also,

Hines v. Miller

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Synopsis

HARRISON, J.

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