Brill v. Fox

THE COURT.

This is an appeal from an order denying the motion of defendants Wallace I. Fox and Haddie Fox, made under section 473 of the Code of Civil Procedure, to vacate and set aside a default judgment entered against them in an action to foreclose a mortgage.

The record shows that the foreclosure action was commenced January 21, 1930; that a copy of the complaint attached to an undated summons was served on these two defendants, in the county in which the action was commenced, on January 24, 1930; that their default was entered on February 8, 1930; that judgment was entered on February 17, 1930. It further appears that on February 23, 1930, defendants discovered that judgment had been entered against them, and called on plaintiff and his attorney the same day; that on February 25, 1930, defendants sought the advice of counsel, who caused a title search of the property to be made, and, on February 28, 1930, counsel informed defendants that they had a defense to the action; that on March 18, 1930, defendants served and, on March 19, 1930, filed a notice of motion to set aside the default.

By the complaint plaintiff sought to foreclose a mortgage on real property alleged to have been executed by the defendants Fox and wife, and to secure a deficiency judgment, if a deficiency should be found to exist. The complaint originally named Wallace B. and Amelia J. Allen as parties defendant, but plaintiff dismissed as to these defendants on February 14, 1930, six days after the default of the Foxes had been taken, and three days before judgment was entered against them.

Appellants contend that their default was taken by reason of “mistake, inadvertence, surprise and excusable neglect”,

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and that the trial court abused its discretion in denying to them the relief sought. In order to understand appellants’ contentions in this regard, it is necessary to trace the history of the property which is the subject of the foreclosure action, as disclosed by the record herein.

On August 6, 1925, Brill, respondent herein, owned the real property in question. On that day, Brill sold the property to the appellants for $12,000, $7,000 being paid in cash, and the remainder evidenced by a promissory note, secured by a mortgage. It is this mortgage which is the subject of this action. On December 28, 1925, appellants sold the property to one Louis P. Mosti, who did not assume personal liability on the mortgage. Mosti, while owner of the property, subject to the above mortgage, borrowed $1500 from Brill, respondent herein, evidencing the indebtedness with his promissory note, secured by a deed of trust. Later, on June 19, 1926, Mosti sold the property to the Allens, originally defendants herein, the Allens assuming personal liability on the mortgage. There were no intervening liens between the Fox mortgage and the Mosti trust deed. Subsequently, Mosti defaulted on his $1500 note secured by the deed of trust, and the trustee sold the property to Brill, being conveyed to him by trustee’s deed on August 24, 1927. Then, after appellants herein and their grantees had defaulted in payments on the $5,000 note, secured by this mortgage, this action of foreclosure was commenced, resulting in the taking of appellants’ default, and the securing of a deficiency judgment against appellants in the sum of $4,898.08.