Blumberg v. Birch

Belcher, C. It is alleged iu the amended complaint in this case that, on the thirteenth day of August, 1887, the defendant executed and delivered to the plaintiff his promissory note and a mortgage on certain real property to secure payment of the same; that on the 15th of December, 1890, the plaintiff commenced an action against the defendant in the superior court of Ventura County to foreclose the said mortgage, and that a summons in the action was issued and served on the defendant by publication only, he being then a non-resident of this state and absent therefrom; that defendant did not appear iu the action, and, after the time allowed by law for him to appear and answer or demur, his default was duly entered by order of the court; that the court then heard proof of plaintiff’s demand set out in his complaint, and examined him on oath respecting any payments that had been made on account [417]of such demand, and thereupon made and entered in the action its decree of foreclosure in the usual form; that under this decree, on March 27, 1891, an order of sale was duly issued to the sheriff of the county and in pursuance thereof the sheriff advertised for sale, and on April 27, 1891, sold the said real property for the sum of $1,000 and applied the same to the payment of the said indebtedness, interest, attorneys’ fees,-costs, and expenses, as directed by said decree; that, after so applying the said sum, there remained due and unpaid to the plaintiff, on said indebtedness for principal and interest on the said note, and as determined by said decree, the sum of $1,746.99; that the sheriff’s return being made showing such balance or deficiency, judgment was duly docketed therefor in favor of the plaintiff and against the defendant on April 28, 1891, and that no part of said sum had been paid. Wherefore the plaintiff demands judgment against the defendant for the sum of $1,746.99, with interest thereon, etc.

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and his demurrer was sustained. Judgment was thereupon entered that the plaintiff take nothing, from which judgment he appeals.

There can be no doubt that the court, by the constructive service of the summons by publication in the foreclosure case, acquired jurisdiction to ascertain the amount secured by the mortgage and to make and enter a valid decree of foreclosure,, directing a sale of the mortgaged property and the application of the proceeds to the payment of the amount so secured,, including costs and expenses. It did not, however, thereby acquire jurisdiction to enter or docket a personal judgment against the defendant for any deficiency left unpaid by the proceeds of the sale. (Pennoyer v. Neff, 95 U. S. 714; Belcher v. Chambers, 53 Cal. 639; Anderson v. Goff, 72 Cal. 65; 1 Am: St. Rep. 34.) But notwithstanding no valid judgment could be entered for the deficiency, still, when properly ascertained, the deficiency constituted a subsisting indebtedness then due from the defendant to the plaintiff. The plaintiff brought this action to recover that indebtedness, and in his complaint set out all the facts on which he based his right of recovery, and the