Crane v. Forth
Before: Vanclief
Synopsis
Appeal from Judgment—■ Presumption—Findings — Foreclosure of Mortgage — Street Assessment — Assignment of Mortgage—Deficiency Judgment against Assignor. — When an appeal is taken upon the judgment roll alone, without any bill of exceptions or findings of fact, in an action by an assignee of a mortgage to foreclose the mort. gage, and also a street assessment lien purchased by him to protect his mortgage interest, and it appears that the assignor of the mortgage denied the validity of the assessment, the presumption, from a judgment refusing to enforce the assessment against the assignor in a deficiency judgment against him, must be, that the court found in his favor on the issue as to the validity of the street assessment, though the judgment makes the lien a charge upon the mortgaged property as against the other defendants who admitted the allegations of the complaint.
Id.—Costs — Disallowance — Presumption as to Cost Bill.—Upon an appeal from a judgment not providing for costs, taken upon the judgment roll alone, without any hill of exceptions or statement, where it does not appear that the prevailing party filed or served any cost bill, nor that he in any manner moved the court, either before or after final judgment, to allow him costs, it cannot he presumed that he filed or served any cost bill, but must be presumed that the judgment is correct; and an objection that the court erred in refusing a judgment for costs will not be considered.
Id.—Mode‘of Assailing Error as to Costs.—An error of the trial court in denying a party costs before final judgment should be shown by a bill of exceptions, or a statement on motion for a new trial. An erroneous order after final judgment, relating to costs, can only be considered upon an appeal from such order.
Vanclief, C. On February 1,1888, Robert W. Forth made his promissory note to the defendant Barnard, for four hundred dollars, payable one year after date, with interest at one per cent per month, and to secure the [89]same executed to Barnard a mortgage of same date on a lot of land situate in the town of San Buenaventura, county of Ventura. May 28,1888, Forth died intestate. On June 16, 1888, the widow, Caroline, was appointed administratrix of Forth’s estate. Publication of notice to creditors to present their claims within four months was duly made, commencing on June 22,1888; but Barnard failed to present his note or mortgage within the four months, or at all. On March 14, 1889, Barnard assigned the note and mortgage to the plaintiff for a consideration of four hundred dollars, then paid, which was equal to the amount then due upon the note, the interest having been paid to Barnard up to the date of the assignment. The written assignment of the note and mortgage, made on a separate paper, contained the following clause: “And the party of the first part (assignor) does hereby make, constitute, and appoint the said party of the second part his true and lawful attorney, irrevocable, in his name or otherwise, but at the proper costs and charges of the said party of the second part, to have, use, and take all lawful ways and means for the recovery of the said money and interest.” On December 31, 1889, the authorities of the town of San Buenaventura claimed to have levied a street assessment of $163.20 upon the mortgaged lot, in favor of one Safford, who demanded payment thereof, and threatened to foreclose it as a lien upon the lot; whereupon plaintiff, as he alleges, to protect his mortgage interest, took from Safford an assignment of the street assessment, and the alleged lien therefor, and paid Safford the amount of the assessment.
Plaintiff commenced this action on February 14,1891, to foreclose both the street assessment and the mortgage, alleging substantially the facts above stated, and in addition thereto, that Barnard indorsed the mortgage note; and praying judgment against the defendants for the amount due upon the note and mortgage for principal and interest; that the mortgaged premises be sold for cash, subject to the lien of the street assessment, “ or in default thereof, that the proceeds of said sale be appro[90]
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