Campbell v. West
Before: Fox
Synopsis
Judicial Notice — Ex Officio Clerk of Superior Court — Filing of Complaint by County Cleric — Indorsement — Surplusage. — The court will take judicial notice of the fact that the comity clerk is ex officio clerk of the superior court, and a complaint indorsed in the superior court, and filed by such clerk as “county clerk,” will be regarded as filed in the superior court. The'placing of the word “county” before the word “clerk” will be treated as surplusage, and will not defeat the effect of the indorsement.
Id. — Location of Lands — Government Survey —Designation by Name .— Private Survey. — Judicial notice will be taken of county boundaries and of the location of lands described by government subdivisions, as by township, range, and section, and the legal subdivisions thereof; but such notice will not be taken of the location of lands designated simply by name or by reference to a private survey.
Foreclosure of Mortgage — Venue — Jurisdiction — Pleading — Evidence— Findings — Recital in Decree. — In an action brought to foreclose a mortgage, it is necessary, to give the court jurisdiction to enter a decree of foreclosure, for the plaintiff to allege and prove that the land sought to be foreclosed is situated in the county in which suit is brought; and in the absence of an allegation of such fact in the complaint, the plaintiff is not entitled to prove it; nor can a finding or recital in the decree that the land is situated in such county he supported in the absence of the necessary averment in the complaint.
Id. — New County ■—Description of Lands in Mortgage — Pleading — Finding. — A complaint to foreclose a mortgage which describes the lands as situated in a county out of which a new county has been formed since the date of the mortgage, but which contains no description identifying the lands as being located in the new county in which the action is brought, is insufficient to sustain a finding that the land is situated therein.
Id.—Maturity of Cause of Action — Default in Installments — Option of Mortgagee — Waiver. — Where a mortgage note provides for interest payable semi-annually, “and if not so paid to be compounded semi-annually and hear the same rate of interest as the principal, and should the interest not be paid when due, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of the note,” the holder of the note, while he exercises his option promptly, may do it at the maturity, and upon default of any installment of the interest, and a failure to exercise such option upon the first default, is, not a. waiver of its exercise at any subsequent default in payment of another installment.
Id.—Notice of Option — Holiday. — When an installment of interest falls due upon a day previous to a holiday, the mortgagee may give notice upon the day following the holiday of his option to claim payment of the whole amount of principal and interest secured by the mortgage, and may demand prompt payment thereof, and commence an action of foreclosure upon default in such payment.
Fox, J. — This is an action to foreclose a mortgage. Judgment and decree in favor of plaintiff, from which defendants appeal, the case coming up on the judgment roll.
1. The first point made is, that the court never acquired jurisdiction of the case, for the reason that the complaint was never filed in the court,— the indorsement thereon showing that the same was filed with the county clerk. This point is not well taken. The court will take judicial notice of the fact that the county clerk is ex officio clerk of the superior court. The complaint is entitled and indorsed in the superipr court of the county of Orange, and is also indorsed, “ Filed October 19, 1889. R. Q. Wickham, County Clerk.” If the indorsement had been signed simply “R. Q,. Wickham, Clerk,” it would have been sufficient. The placing of the word “county” before the word “clerk” was mere surplusage, and will not defeat the effect of the indorsement, iuas[200]much as it is a designation consistent with that of the ex officio office of clerk of the court.
2. It is claimed that the complaint contained no description or allegation showing that the property against which foreclosure is sought was situate within the jurisdiction of the court. The action must be brought in the county in which the land is situate. (Const., art. 6, sec. 5; Code Civ. Proc., see. 392.) The complaint in this case contains no description of the property, except as it is found in the copy of the mortgage attached as an exhibit, and that describes it as being situate in th.e county of Los Angeles. The court finds and recites in its decree that the land is situate in the county of Orange, and that the same was formerly a part of the county of Los Angeles. This finding and recital would be sufficient, if there was anything in the complaint to support it, but there is not. The court will take judicial notice of the boundaries of the county, and of the location of lands described by government subdivisions, as by township, range, and section, and the legal subdivisions thereof; but it cannot take judicial notice of the location of lands designated simply by name, or reference to a private survey, as in this case. The only description given in the complaint or mortgage attached is, that it is “ situate in the county of Los Angeles, state of California, and described as follows, to wit: In Rancho Santiago de Santa Ana, the whole of block N (except thirteen acres on the east side thereof heretofore sold to Mrs. Gearhart), the same being and lying in the Gray tract, as surveyed and subdivided by George Knox in February, 1881, a plat of jvhich tract is duly recorded in the office of the recorder of deeds in and for said county of Los Angeles,” etc. There is not a word here indicating a fact of which the court can take judicial notice, and every fact which is indicated by this description tends to show that the laud was so situate that the court did not have jurisdiction to foreclose this lien. It was
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