Anglo-Californian Bank, Ltd. v. Griswold

HENSHAW, J.

This is an appeal from a judgment of dismissal granted upon the motions of William C. Spencer and Eliza S. Eldridge, under the authority of subdivision 7, section 581 of the Code of Civil Procedure, and also upon the ground that “plaintiff has abandoned the prosecution of said action and has failed to prosecute the same with due or any diligence.”

The action is to foreclose mortgages upon real estate executed by Norman W. Griswold and Anna E. Griswold, his wife. These mortgages were in the form of deeds absolute. The complaint was filed April 26, 1898, and summons then issued. In the moving affidavits it is alleged, upon in

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formation and belief, that the summons was not served. This is expressly denied by the affidavits filed on behalf of plaintiff, whereby it is established that the summons was served upon the Griswolds, and that upon July 14,1898, they executed and delivered to plaintiff the following:—

“To the clerk of said court:

“You will please take notice that we and each of us herewith enter our appearance in the above-entitled action and consent that judgment may be entered in favor of plaintiff herein as prayed for in said complaint.

“Dated July 14th, 1898.

“Norman W. Griswold,

“Anna E. Griswold.”

It is further shown by plaintiff that the Griswolds had requested the plaintiff not to proceed with the foreclosure, in the hope and expectation that the mortgaged property might increase in value so that they would be able to pay the mortgage debt from the proceeds of sales of parts of it. Thus, upon June 7, 1899, the Griswolds executed to plaintiff an authorization “to sell or convey any and all pieces of prop-. erty heretofore conveyed to you by us, or either of us, to any party or parties you may decide, and at such figures or upon such terms as you may determine, crediting all proceeds from the sale of said property to our or either of our indebtedness to your bank, and we hereby ratify and confirm any sales or conveyances you may make under this authorization.” So, whatever the delay in bringing plaintiff’s action to a judgment, it was attributable solely to the defendants’ instance and request. It was granted out of consideration for them and for what they believed to be their best interests. In June, 1899, W. 0. Spencer, one of the movents herein, commenced his action against the Gris-wolds to foreclose his mortgage lien upon some of the property affected by plaintiff’s suit. In that action this plaintiff filed its answer, setting up its mortgages. Spencer seems to have regarded the pleading of this plaintiff in his action as a cross-complaint, since he filed a reply thereto which he styled “plaintiff’s answer to defendant’s cross-complaint.” Negotiations followed between this plaintiff and Spencer, to the end that the mortgages should all be foreclosed