Hibernia Savings and Loan Soc. v. Boyd

ANGELLOTTI, J.

This is an action on an alleged judgment for deficiency after foreclosure sale of mortgaged premises. A verdict in favor of plaintiff for the amount of such alleged judgment, with interest, was rendered by the jury trying the ease, in- accord with an instruction of the trial court directing them to so do. This is an appeal by defendant from the judgment entered on such verdict, and from an order denying his motion for a new trial.

Upon the facts, as established by the admissions of the answer and the uncontroverted evidence given at the trial, the trial court was fully warranted in instructing the jury to find for the plaintiff.

The admissions contained in defendant’s answer were sufficient to warrant the trial court in taking it as a conceded fact that the original foreclosure judgment was duly given and made by the superior court of the city and county of San Francisco in an action in which it had jurisdiction of the subject-matter and in which it had acquired jurisdiction of the person of the defendant Boyd. The real issues made by the answer in regard to this were as to the nature and terms of said judgment, and the exact date upon which it was given and entered (October 13th or 15th, 1900), the date being material in view of the defense of the statute of limitations. The evidence was such as to compel the conclusion that the judgment was given, made, and entered on October 15, 1900,

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and was for the 'foreclosure of a certain mortgage upon the lands described in the complaint in said action, and for the sale of said lands to satisfy the said judgment for the sum of $61,184.10; and for the appointment of a referee to make sale of said lands, and out of the proceeds thereof, if sufficient, to satisfy said judgment for $61,184.10, and if the sum so obtained for said lands was insufficient to satisfy said sum, that the clerk of said court enter a judgment in said action, against Boyd, for such deficiency, and that it adjudged Boyd personally liable on said mortgage.

It was alleged in the complaint “that thereafter, and in pursuance of said judgment and decree the said referee duly sold the said land, obtaining therefor the sum of $56,184.10; and that he thereafter returned to this court his report in said cause, which, among other things, showed the sale of said land, and the amount received therefor.” By his answer to this, defendant, on information and belief, denied simply that the referee sold said land for any sum less than the entire amount of the judgment, not denying the sale, and not denying that the referee made a return to the court showing the' sale for $56,184.10 only. The evidence introduced was such as to compel the conclusion, in accord with the allegation of the complaint, that the clerk of the court did on November 15, 1900, after the filing of such report, docket the deficiency of five thousand dollars against defendant in his judgment docket, as it was his duty to do both under the law (Code Civ. Proc., sec. 726) and the terms of the foreclosure judgment, if 'the report of the officer showed such deficiency. The so called referee was practically the “commissioner” provided for by section 726 of the Code of Civil Procedure, to act in place of the sheriff in such matters where it is so desired by the court, and such a commissioner’s report, like the return of the sheriff, is