Hildebrand v. Superior Court

ANGELLOTTI, C. J.

This is a proceeding to annul for want of jurisdiction an order made by the superior court in the action of

Martin

v.

Chiossi et al.,

an action to quiet title, directing the defendant Humboldt Savings Bank to execute to the plaintiff therein, on payment of principal and interest due, notary fee, and attorney fee, an assignment of a note and mortgage constituting a first lien on the real property involved in the action, and subrogating plaintiff to the rights of said mortgagee.

The petitioners for the writ are Hildebrand, Lettieh, and Mr. and Mrs. George H. Chiossi, who were originally the defendants in said action, and Humboldt Savings Bank, which was sued as John Doe, and answered.

The action is one instituted December 15, 1915, plaintiff Martin alleging that ever since December 24, 1914, he has been the owner of the property by virtue of a deed executed to him on that day by George H. Chiossi, who it is alleged was then the sole owner of the property.

On January 28, 1916, defendants Lettieh and Hildebrand demurred to the complaint, and on February 1,1916, Mr. and Mrs. Chiossi demurred to the complaint. These demurrers apparently have not been disposed of.

The bank answered denying the allegations of the complaint, and alleging that on December 26, 1912, the defendants Hildebrand and Lettieh were the owners of the property, borrowed three thousand dollars on it, and gave a note payable December 26, 1914, and a mortgage on such land to secure payment thereof, and that no payment was ever made thereon.

On January 31, 1916, plaintiff Martin asked the superior court for an order requiring the bank to show cause why it

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should not accept from plaintiff the amount due on its note and mortgage, and assign same to plaintiff, and why an order should not be made subrogating plaintiff to all of its rights.

An affidavit filed by said plaintiff Martin stated substantially that on January 15, 1914, George Chiossi was the sole owner in fee of said property, and gave a note and a mortgage on the property to Hildebrand and Lettich for three thousand five hundred dollars (the second mortgage on the property), that they obtained a decree of foreclosure and that a sale was had thereunder July 14, 1915, Hildebrand and Lettich becoming purchasers for two thousand dollars. Allegations were made therein that Martin made a good offer of redemption, which was refused, and that after this Hildebrand and Lettich gave Chiossi a certificate of redemption, and Chiossi gave Hildebrand and Lettich a deed of trust as security for three thousand five hundred dollars.