San Diego Realty Co. v. Hill

[638]

SHAW, J.

From a judgment in favor of the plaintiff, foreclosing a mortgage, the defendant, Klein, appeals.

The complaint sets forth the execution and contents of the mortgage and of the notes the payment of which is secured thereby, and prays for judgment of foreclosure, in the ordinary form. It further alleges, on information and belief, that the defendant, Luther M. Hill, never resided in the state of California. The mortgage and notes were executed by Hill to O. J. Stough, who assigned them to plaintiff. John P. Klein subsequently became the owner of the land described in the mortgage. It is alleged in the complaint that neither of the subsequent holders of the title under Hill have ever resided within the state of California since the execution of the mortgage.

The answer of Klein denied the execution of the mortgage and notes sued on and the assignment thereof to plaintiff. It also denied the allegation that Hill had never resided in the state of California. As an affirmative defense it attempted to aver that the action was barred by the statute of limitations. It did not set forth this defense as provided in the code, by averring that the action was barred by the particular section relied on, but merely alleged that the cause of action “did accrue or arise above four years before the said complaint was filed in this court.”

The point first urged for a reversal is that the court erred in denying a motion for a continuance made by the appellant Klein on the ground that the mortgagor Luther M. Hill was dead. The court overruled the motion and thereupon plaintiff dismissed the suit as against Hill. Inasmuch as it appears that Hill had conveyed the property subsequent to the mortgage, that Klein now claims solely as successor of Hill and that the decree provides for no deficiency judgment but merely for a foreclosure and sale of the mortgaged property, we can see no error in this ruling. Hill was not a necessary party to the action, and his death, whether before or after the beginning of the action, did not require any postponement of the trial after the plaintiff voluntarily dismissed as to him.

It is further claimed that the evidence was not sufficient to justify the finding that the defendant Hill never resided in the state. This claim cannot be sustained. The mortgage sued on was introduced in evidence. It recited the fact that Hill resided in Chicago, Illinois. There was also introduced