Little v. Superior Court

Paterson, J. This is a proceeding to restrain the superior court of Monterey County from trying the case of Withers v. Little et al., so far as these petitioners are concerned therein.

The action referred to is a foreclosure suit, commenced by Withers against David Jacks and petitioners herein, Milton Little and Mary Little, in 1878. It is alleged there that the Littles are indebted to Withers upon a certain promissory note; that they gave a mortgage on lots 1 and 2, in Monterey, to secure the payment of the note; and that Jacks claims some interest in the property. The Littles made default; Jacks put in an answer denying that his mortgage was subsequent in time or in equity to that of Withers upon lots 1 and 2, and, in a cross-complaint, alleged that the Littles were indebted to him upon a promissory note secured by a mortgage upon said lots 1 and 2, and also upon lots 3, 4, 5, and 6. The Littles consented in open court to the entry of judgment against them as prayed for by Jacks in his cross-complaint. The cause was tried by the court, and a decree entered in favor of Withers against the Littles for the sum claimed by him, and in favor of Jacks for the sum claimed in his cross-complaint. It was further adjudged that the Withers mortgage upon lots 1 and 2 had priority. At the foreclosure sale, Withers purchased lots 1 and 2, Jacks purchased lots 3, 4, 5, and 6, and certificates of sale were regularly issued to them and were duly recorded. Thereafter, Jacks filed a notice of appeal, which reads as follows: “ (Title of court and cause.) You will please take notice that the defendant, David Jacks, in the above-entitled action hereby appeals to the supreme court of this state from the judgment made and entered in said district court on the twenty-fifth day of July, 1878, in favor of plaintiffs in said action, and against the defendants therein, and from the whole thereof. Dated this twenty-first day of July, 1879. Houghton and Reynolds, attorneys for defendant, David Jacks.”

[221]An objection was made by the Littles in the supreme court to the hearing of the appeal, on the ground that, as to them, no appeal had been taken. The decision of this court is printed in 56 Cal. 370 et seq. The court did not directly and fully sustain the objection thus made, but in the opinion said: “In considering this cause, we have regarded the appeal as to the administrator of Milton and Mary Little, his wife, not properly taken.” The judgment was reversed, and cause remanded, with directions to enter judgment giving Jacks’s mortgage priority. A rehearing was asked, which was denied, but the court remanded the case for a new trial. (See report of the case.)