La Société Francaise de Bienfaisance Mutuelle de Los Angeles v. Weidmann

Paterson, J. This is an appeal by Roth & Co. from that portion of the decree of foreclosure and order of sale which adjudges and decrees that if the moneys arising from the sale shall be insufficient to pay the amount found due to the plaintiff, together with the [508]costs and expenses of sale, the clerk shall docket a judgment for the balance against Roth & Co., a copartnership, together with interest on such deficiency judgment at the rate of seven per cent per annum, and also from the deficiency judgment against defendant entered by the clerk upon the return of the sheriff.

The action was commenced on October 22, 1890, and summons was issued on the same day. The defendants named in the original complaint were Henry Weidpiann and Roth & Co., a copartnership composed of A. Roos, S. Scheeline, and Joseph Roth. The note and mortgage upon which the action was based were executed and delivered by defendant Weidmann to the plaintiff March 29, 1888. It was alleged in the complaint “that the defendant Roth & Co., a copartnership composed of A. Roos, S. Scheeline, and Joseph Roth, have, or claim to have, some interest in or claim upon said premises, or some part thereof, as purchasers, mortgagees, and judgment creditors, or otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff’s mortgage.” A decree in the usual form was prayed for, including a deficiency judgment against Henry Weidmann in case the property should be sold for less than the amount of the judgment. Summons was duly served upon the defendants, but no appearance was made by any of them. On November 12, 1891., plaintiff filed an amended complaint, in which the defendants named were “ Henry Weidmann, A. Roos, S. Scheeline, and Bertha Roth, A. F. Benard, and 0. Bozio, executrix and executors, respectively, of the last will of Joseph Roth, deceased.”- In this amended complaint it was alleged that on January 22, 1890, Weidmann sold and conveyed the property to “A. Roos, S. Scheeline, and Joseph Roth, they—the said Roos, Scheeline, and Roth — then constituting the firm of Roth & Co., of the city of San Francisco that the deed contained the following provision: “Subject, however, to a certain mortgage of two thousand dollars held by the French benevolent society of Los Angeles, Califor[509]nia, which payment the grantees herein hereby assume and agree to pay.”