Hibernia Savings & Loan Society v. Moore

McKee, J. The action in hand was brought for the recovery of a money judgment, and foreclosure of a mortgage upon real property, alleged to have been given by the defendants Charles C. Moore and his mother, Mary A. Moore, to the Hibernia Savings and Loan Society as security for the payment of fifty-seven thousand five hundred dollars, money borrowed by the defendant Charles.

Part of the mortgage premises is a parcel of land in the city and county of San Francisco, which belonged to the defendant Mary, as her sole and separate estate. In her answer to the complaint, she avers that the note and mortgage were given by her son to secure payment of money borrowed by him from the plaintiff, to pay his own existing, antecedent, private, personal, and separate indebtedness, and not for her use or benefit, or for or on her account; and she denies that she signed either of said documents, or that she was personally present, or in any way a party to the transaction between the plaintiff and her son in which they were given; or that she authorized him to sign her name to the note or mortgage. On the contrary, she avers that he had no authority to sign her name to the note, or in her name to execute the mortgage upon her separate property for the money borrowed for his individual purposes, and this was well known to the plaintiff when it loaned him the money [158]and received from him his note and mortgage as security for its repayment. •

On the trial of the issues framed by the complaint and answer, the court decided that the plaintiff was entitled to recover against the defendant Charles upon the promissory note, and against the defendants Charles and Mary to a decree for the sale of the mortgaged property, including the separate property of the defendant Mary, to satisfy the judgment; and from the decree and an order denying her motion for a new trial the defendant Mary appeals.

The grounds of the motion for a new trial were, that the evidence was insufficient to justify the decision, that the decision was against law, and that errors of law had occurred at the trial to which exceptions were taken.

The motion itself was made upon a statement of the case.

The contention is made that this statement must be disregarded, because the notice of motion designated as grounds of the motion: 1. Surprise; 2. Newly discovered evidence; 3. Insufficiency of the evidence to justify the decision; 4. The decision was against law; and 5. Errors of law; and that the motion would be made upon affidavits as to the first, second, and third grounds, and upon a statement of the case as to the fourth and fifth grounds. But there was no affidavits made or filed. The motion was made upon a prepared statement, to which amendments were proposed, and the same was settled and certified according to law, without any objection taken, or right reserved to object thereafter, to any irregularity in the proceeding leading up to or in connection with the settled statement; and the motion was heard and decided upon the statement without any objections of irregularities. Any irregularity in the proceeding upon the motion was, therefore, waived (Hobbs v. Duff, 43 Cal. 486; Gray v. Nunan, 63 Cal. 220); and cannot be availed of for the first time in this court.