Rodgers v. Parker

GRAY, C.

This action was brought by plaintiff against S. Webber Parker to foreclose a mortgage given by the latter to plaintiff to secure three notes for the principal sum of sixteen thousand dollars each. The property affected by the mortgage had been sold by the plaintiff to said S. Webber Parker, and said notes and mortgage represented a part of the purchase price thereof. Prank L. Parker, Prank Cleese, the Hornitos Gold Mining Company (a corporation), and W. E. Holbrook were made defendants in the action, and the complaint alleges as to these parties that they “have, or claim to have, some interest in or lien on the property in question; and that said interest or lien is subsequent to and subject to the plaintiff’s said mortgage.” Judgment by default went against all the defendants except the appellant. The appellant answered the complaint, denying that his lien was subsequent to plaintiff’s, and in a cross-complaint set up a mortgage on the same property described in the complaint, of date prior to plaintiff’s mortgage, executed by plaintiff and defendant Cleese to one S. Nickelsburg, to secure the payment of a note between the same parties for the principal sum of $6,117.18, which said note and mortgage was alleged to have been duly assigned to S. Webber Parker, and thereafter by the latter to the appellant, Prank L. Parker. In this cross-complaint appellant prayed that the property be sold and the first proceeds of the sale applied to the satisfaction of cross-complainant’s note, mortgage, costs, and counsel fee of one thousand dollars. The plaintiff answered the cross-complaint, and, in addition to denials of the allegations thereof, pleaded payment of the cross-complainant’s note and mortgage, and that said payment was accomplished by an agreement between plaintiff and S. Webber Parker, to the effect that the extinguishment of said note and mort

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gage was a part of the consideration for the said conveyance of the property in question by plaintiff to said S. Webber Parker. In his answer the plaintiff prayed that the court decree that the note and mortgage mentioned in the cross-complaint are fully paid, satisfied, and discharged, and that the same are no longer liens upon the lands or any part thereof described in plaintiff’s complaint. On the issues thus framed the ease was, on September 17, 1898, set for trial with the consent of appellant for the fifteenth day of October, 1898, when it "was tried before the court without a jury, and judgment given in accordance with the prayer of plaintiff’s answer to the cross-complaint. When the case was called for trial the appellant moved^for a continuance on the ground that the necessary parties to his cross-complaint—Prank Olcese and the corporation defendant—had not then been served with process.