Malone v. Bosch

Temple, C. This appeal was taken by plaintiff from an order granting the defendants’ motion for a new trial.

The action was brought against John G. Bosch and his wife, to foreclose a mortgage upon the homestead of the defendants. The homestead had been duly selected prior to the execution of the mortgage. Both defendants were served with the summons, but the wife did not appear in the action, and her default was not entered. The husband appeared and answered, setting up the homestead character of the premises, and denying the validity of the mortgage. A copy of the mortgage was set out in the complaint, showing that it was acknowledged by both husband and wife on the seventeenth day of August, 1885, before R. G. Knox, a court commissioner of the superior court of Del Norte county. It is contended that court commissioners at that date had no authority to take and certify acknowledgments.

No separate document designated “ findings” was signed by the judge, but in the decree which was signed by the judge it is stated that the court finds all the averments of the complaint to he true. Nothing is said about the averment of the homestead in the answer.

The new trial was granted upon two grounds: 1. The default of the wife ought to have been entered before the decree was made; and 2. Findings were not waived, and therefore the judgment was irregular.

1. The trial court was right in holding that it was irregular to enter judgment without first entering the default of the defendant who failed to appear and answer, but the judgment was not therefore void, and the irregularity did not concern John G. Bosch, who was the only party moving for a new trial.

2. Since the bill of exceptions shows affirmatively that findings were not waived, it was undoubtedly necessary [682]that tlie court should find upon every issue, a decision of which was necessary before rendition of judgment. But a judgment will not be reversed here for such an omission, if this court can see that the additional fact pleaded in the answer would have constituted no defense if it had been found as averred. The mortgage with the acknowledgment was set out at length in the complaint. Its correctness was admitted. The only new fact averred was that the premises constituted the homestead of the mortgagors at the time of the execution of the mortgage. Had that been found, would it have affected the judgment ?