Ewing v. Richvale Land Co.

[153]

MELVIN, J.

A judgment of foreclosure was entered on February 25,1916, and an appeal was taken on April 29, 1916. That appeal has been dismissed on motion of appellant. The judgment was on two promissory notes each for $4,593', and by it a sale of the premises covered by the mortgage was ordered, but there was no express provision for the docketing of any deficiency. The property was sold for five thoúsand dollars; a return showing this fact was filed; and on April 22, 1916, the clerk docketed a deficiency judgment against appellant in the sum of $6,617.30. On April 24, 1916, Richvale Land Company appealed from this deficiency judgment and respondent has moved to dismiss the appeal upon the ground that such a judgment is not appealable.

Appellant insists that there is no doubt that the deficiency was entered without authority of law; that while the original judgment as given by the court directed the commissioner to conduct the sale of the premises and to apply the proceeds to the payment of the notes, interest, etc., there was no adjudication of a personal liability against appellant which would authorize the clerk under the terms of section 726 of the Code of Civil Procedure to docket a judgment for any balance remaining due; and that in the absence of a judgment of personal liability, such a docketed entry is void. (Citing

Scam-man

v.

Bonslett,

118 Cal. 93, [62 Am. St. Rep. 226, 50 Pac. 272];

Herd

v.

Tuohy,

133 Cal. 55, [65 Pac. 139], and other authorities.) But if we concede this much of appellant’s position, we are not aided in the solution of the only question» presented by this motion, which is this: Is the clerk’s entry of a deficiency judgment separately appealable?

At the oral argument it was suggested that relief from the apparent lien created by the void entry should have been sought by appropriate motion in the lower court to set aside and cancel the clerk’s entry made without authority, and that if such a motion were denied, an appeal might have been prosecuted from the order of the court, if one were made, refusing to expunge the clerk’s unauthorized entry. In other words, the objection to entertaining such an appeal is that by so doing this court would recognize the mere clerical function of a ministerial officer as a judicial act.