Bank of Italy National Trust & Savings Ass'n v. Bettencourt

SEAWELL, J.

On September 28, 1925, J. E. Francis and John Miramontes, in their names, began a personal property foreclosure action in the Superior Court of the County of San Mateo against Joseph S. Bettencourt and wife, Mary Bettencourt, and the Bank of Half Moon Bay and certain fictitious defendants. The Bank of Half Moon Bay was made a party defendant on the theory that it claimed some interest in the subject matter of the action. The case was tried by the court, a jury trial having been expressly waived.

Said plaintiffs based their causes of action upon two counts. The first consisted of a one-year promissory note in the sum of $900, executed July 1, 1924, by defendants Bettencourt and wife in favor of said plaintiffs Francis and Miramontes, and secured by a chattel mortgage of a number of head of livestock and miscellaneous personal property used by the Bettencourts in conducting a dairy business. The second count was also upon a one-year prom

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issory note in the sum of $500, secured by chattel mortgage, executed by the defendant Joseph S'. Bettencourt to Manuel Alves,'July 1, 1923, -which note was, on September 24, 1925, together with said chattel mortgage, assigned to plaintiffs Francis and Miramontes. On October 5, 1925, defendant Bank of Half Moon Bay appeared by general demurrer, which demurrer was, on October 23, 1925, overruled. "Whether any other of said defendants were served does not appear. No other action was taken in said proceeding until June 27, 1928, on which day the present plaintiff, through its manager, M. J. Bettencourt, who was also manager of the Bank of Half Moon Bay before it became a branch of the Bank of Italy National Trust and Savings Association, a national association, filed an affidavit in said proceedings setting out

in extenso

the transfer and sale of all the stock, property and assets of said Bank of Half Moon Bay to said Bank of Italy National Trust and Savings Association, made March 1, 1927, which thereby became the successor of said Bank of Half Moon Bay in the banking business formerly conducted by it, including the promissory notes and chattel mortgages which form the basis of this action, and praying for an order substituting the Bank of Italy as plaintiff in the place and stead of Francis and Miramontes, as permitted by the provisions of section 385 of the Code of Civil Procedure. On July 29, 1928, the judge of said superior court, upon the faith of said affidavit, made an order substituting this plaintiff in the place and stead of former plaintiffs Francis and Miramontes, dismissed the defendant Bank of Half Moon Bay from the action, granted this plaintiff the right to file its amended complaint setting forth its interest, and ordered that a copy of said amended complaint be served upon all parties defendant herein. Accordingly, on August 4, 1928, said so-called amended complaint was filed, differing from the first only as to said substituted party plaintiff and the omission of the Bank of Half Moon Bay as a party defendant. Defendants Bettencourt in due time answered said amended complaint and denied that either or both of them had ever appeared before a notary public or any other officer authorized to administer oaths and acknowledged or executed said chattel mortgages, or that the same were duly acknowledged or verified so as