White v. Patton

California Supreme Court Dec 16, 1890 No. No. 12879Published

Before: Fox

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Holding. The court held that a defendant seeking affirmative relief against a co-defendant via a cross-complaint must serve that pleading upon the affected party to establish jurisdiction, even if the party has defaulted on the original complaint.

Issues

Whether a court acquires jurisdiction to grant affirmative relief on a cross-complaint against a co-defendant who has defaulted on the original complaint without service of the cross-complaint.
Whether service of a cross-complaint is required to satisfy due process and statutory requirements for a deficiency judgment against a co-defendant.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It did not follow that their default upon the plaintiff’s summons would give the court jurisdiction to enter another, further, and different judgment against them, in favor of another and different party”

“The court was therefore without jurisdiction to enter the judgment which was entered in favor of said defendant Thomson for affirmative relief against the defendant Patton.”

Synopsis

Foreclosure of Mortgage — Pleading — Answer of Subsequent Mortgagee—Cross-comblaint— Service — Default.—In proceedings for the foreclosure of a mortgage, the answer of a subsequent mortgagee, which sets up a junior mortgage and prays for a foreclosure thereof, must be treated as a cross-complaint, and must be served upon all the parties affected thereby, including the mortgagor, though he has made default upon the original complaint.

Id. —Judgment by Default — Jurisdiction — Appeal. —Where such service is not made, the court has no jurisdiction to render judgment of foreclosure by default in favor of the subsequent mortgagee, even though the parties against whom the default was taken were properly served with summons issued, on the original complaint and had failed to appear; and the error in rendering such judgment will be corrected upon appeal from the judgment by default.

Fox, J. Proceeding for foreclosure of mortgage. Defendants Patton, the mortgagors, made default, but the defendant Thomson, who was alleged to make some claim as a subsequent mortgagee, answered, setting up a junior mortgage made by the same mortgagors, and prayed that after the satisfaction of plaintiff’s mortgage the proceeds of sale should be applied to the payment of the amount due upon such junior mortgage, and for judgment for deficiency, if any there should be, against the Pattons. The court rendered judgment accordingly, and the Pattons appeal.

Appellants claim that the answer of Thomson was really a cross-complaint. Such really was its effect, and [152]for the purposes of this appeal we shall treat it as such. It prayed for, and under it there was granted to him. affirmative relief against his co-defendants Patton; and tb' question is, whether the proceedings were such as gave the court jurisdiction to grant that affirmative relief. It is not pretended that the allegations of the pleading were not sufficient to support such a judgment; but the claim is, that the court never acquired jurisdiction to render the judgment and decree of foreclosure of this seco-nd mortgage, for want of proper service, or of any service, upon the defendants against whom the judgment ran. In this contention we think appellants are correct.

By the service of the summons issued upon the complaint of plaintiff, the court acquired jurisdiction of the parties, and control of all the subsequent proceedings. (Code Civ. Proc., sec. 416.) But what is meant by those words, “all the subsequent proceedings ” ? Manifestly it means proceedings upon that complaint, and for that cause of action. It had jurisdiction to hear and determine the rights of all the parties as to the questions involved in the cause of action stated in that complaint. It could ascertain and determine the amount due to plaintiff, and enter a decree foreclosing his mortgage, as against the claims of all the defendants; or if it had found the mortgage of defendant Thomson to be a prior mortgage, instead of a subsequent one, it could have granted him proper relief as against the plaintiff, provided the plaintiff had been properly served with the cross-complaint. But quoad the plaintiff’s cause of action, defendants Patton, the mortgagors, who alone were personally liable in the action, had a perfect right to make default, and let the plaintiff have the relief he prayed against them without contest. It did not follow that their default upon the plaintiff’s summons would give the court jurisdiction to enter another, further, and different judgment against them, in favor of another and different party, upon another and different cause of ac

White v. Patton

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