Broadribb v. Tibbetts

Appeal by defendant Luther C. Tibbetts from an order of the Superior Court of the County of San Bernardino denying motion for j udgment by default on cross-complaint. Rolfe, J.

Action of foreclosure of mortgage. The action was brought against defendant Luther C. Tibbetts and Eliza M., his wife. The transcript contains what purports to he the answer and cross-complaint of the defendant, Luther C., appearing m, propria persona as the defendant in the case, but contains no evidence of their service or filing except the following:

“ Demand for judgment. (Title of court and cause.) Now comes defendant Luther C. Tibbetts and asks for and demands judgment by default against H. Goodcell, Jr., guardian for William Broadribb, insane, for the sum of one hundred and thirty-seven dollars and forty-four cents, and that said Goodcell be removed from the position of guardian of the estate of William H. Broadribb, or the person and estate of said Broadribb, and that all of said Goodcell’s acts as guardian be set aside, and that the note and mortgage now in the hands of the said Goodcell be put into the hands of Edward Broadribb, guardian of the person and estate of said William H. Broadribb, and that Edward Broadribb be authorized and empowered to go on and settle up the estate of William H. Broadribb, and report to this Court upon the pleadings in the before-entitled action, for the following reason: A copy of plaintiff’s complaint was served on defendant December 6, 1881, and that within ten days thereafter defendant served on plaintiff’s attorneys copy of answer and a cross-complaint, and put the original answer and cross-conplaint on file in the Clerk’s office of this county, and that more than ten days have expired and plaintiff has neither got an extension of time, demurred to defendant’s answer and cross-complaint, made a motion to strike out, nor answered the same. Luther C. Tibbets, Defendant in person. Indorsed: Filed January 3,1882.”

This demand for judgment was denied by the Court below, and the defendant Luther C. gave notice of appeal. Respondent moved in this Court to dismiss the appeal.