Erkins v. Ayer

Morrison, C. J.: The plaintiff commenced a suit in the late District Court of the Twentieth Judicial District, for the foreclosure of a mortgage on certain real property situate in the County of Santa Clara, and made A. P. Winegar a party defendant therein, under the averment that he, Winegar, had some interest in, or lien upon, the mortgaged premises. The defendant Winegar appeared in the suit and filed his answer or cross-complaint (the true character of the pleading it is unnecessary for us to determine), in which he fully stated the nature of his lien, which was in the form of a judgment recovered by him against the defendant Ayer in the said District Court, and praying that the Court would order, adjudge, and decree, that the amount of his judgment be paid out of the surplus funds derived from the sale of the mortgaged [312]property, after plaintiff’s claim was fully paid. The defendant Ayer, in his answer, simply denies that at the commencement of the suit, there was due the plaintiff from the defendant, “ by virtue of the terms of the promissory note set forth in the ■ complaint, the amount of money alleged to be owing and unpaid, or any part thereof. Wherefore he prays that no personal judgment be rendered against him.”

The Court proceeded to hear and determine the case on the pleadings filed therein, and the final decree rendered in the case directs that the claim of the defendant Winegar shall be paid out of the surplus funds arising from the sale of the mortgaged premises. The decree was filed on the 10th day of September, 1879, and on the 11th day of February, 1880, the defendant Ayer filed an affidavit setting forth that the “ cross-complaint” of the defendant Winegar had never been served upon him; “that on the 18th day of November, 1878, he made, executed, acknowledged, and recorded in the records of Santa Clara County, a good and valid declaration of homestead upon the premises affected by the decree,” and averring that the portion of the decree directing the payment of the surplus proceeds resulting from the sale of the mortgaged premises, was taken against him by mistake, inadvertence, and excusable neglect. This affidavit was followed by a statement on motion for a new trial, from which it appears that “ the defendant A. P. Winegar, by his attorneys Messrs. Houghton & Reynolds, filed his ansiver, and the attorney for plaintiff waived service thereof in open Court, and asked that the trial of the cause proceed. The attorney for the defendant H. N. Ayer, C. C. Stephens, Esq., thereupon in open Court waived the service of said ‘ answer,’ and stated to the Court that his client had no interest in the matter set forth in said ‘ answer ’ of Winegar, for the reason that he did not believe that the property was worth as much as the Erkins’ mortgage, and announced himself ready to proceed with the trial of the cause. Defendant Ayer’s motion for a new trial was overruled by the Court, and this appeal is taken from that portion of the judgment and decree which directs that the surplus proceeds, after paying the amount due on the mortgage, be applied to the payment of the claim of defendant