Orange Growers' Bank v. Duncan

COOPER, C.

Action to foreclose certain mortgages. Findings were filed, and judgment entered against appellants. The appeal is from the judgment, on the judgment roll.

1. It is claimed that the court erred in striking out the demurrer of appellants to the amended complaint. It is not shown that the demurrer was well taken, or that it should have been sustained if it had not been stricken out. The appellants were allowed to answer and present their defense fully upon the merits. There is no bill of exceptions, and the notice, affidavit, and motion upon which the order striking out the demurrer was made are no part of the judgment roll. (Code Civ. Proc., sec. 670;

Dimick

v.

Campbell,

31 Cal. 240;

Catanich

v.

Hayes,

52 Cal. 338.)

It therefore does not appear that any injury was done to appellants by the order, and we must presume that it was based upon valid reasons, as all presumptions are in favor of the judgment. The demurrer to the answer and cross-complaint of defendant Duncan was properly overruled.

Conceding that Thomassen A. Duncan, the wife of plaintiff Archibald Duncan, should have been made a plaintiff for the reason that she was a joint owner of the second note and mortgage, no injury appears to have been done to appellants. She claimed the same relief in her cross-complaint as to the joint mortgage as was claimed by her husband in the amended complaint. She therefore was claiming all that she could have claimed if a co-plaintiff with her husband. That she claimed the relief as defendant instead of claiming it as plaintiff, could not have damaged or misled appellants.

2. The plaintiff corporation commenced the action to foreclose its mortgage upon the premises described in the findings

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and decree. ■ It appears that, at the time of the commencement of the action, Archibald Duncan and Thomassen Duncan, his wife, held a second mortgage upon the same premises, which was subsequent to and subject to the mortgage of the corporation. The Duncans were therefore made defendants in the suit as originally commenced. Subsequent to the commencement of the suit, the corporation sold and assigned its mortgage to plaintiff Archibald Duncan, and after said assignment an order of court was made substituting said Archibald Duncan as plaintiff.' He then filed an amended complaint, setting up the facts, but retained the name of the corporation as joint plaintiff. It is claimed that it was prejudicial error to allow the corporation to remain plaintiff under the objection of appellant. It is provided in section 385 of the Code of Civil Procedure: “In case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.”