Savings Bank of St. Helena v. Middlekauff

McFarland, J. This is an ordinary action to foreclose a mortgage made by the defendants, E. D. Middlekauff and his wife Addie, to secure a promissory note made by said defendants to plaintiff for three thousand five hundred dollars. The said defendants first filed a short answer in which they merely denied generally all the allegations of the complaint. Some months afterward, when the case was called for trial, the said defendants presented and asked leave to file an amended answer and also a cross-complaint. The court denied leave to file either of said offered pleadings. The case then proceeded to trial, and judgment was rendered for plaintiffs, foreclosing the mortgage in the usual form; and said defendants appeal from the judgment.

The only question raised by the appeal is whether or not the court erred in denying the motion of the appellants to file said answer and cross-complaint. No question is made by respondent as to the time when the offer to file the said pleadings was made, or that the defendants were guilty of laches. The court denied the motion upon the ground that the proposed answer constituted no defense to, the action, and that the matters therein set forth could not be litigated in this action; and upon the same ground denied the motion to file the cross-complaint.

The matters set out in the proposed answer and cross-complaint are, briefly, that at the time of the execution of the mortgage the appellants also assigned and delivered to plaintiff a certain fire insurance policy, issued by the Sun Insurance Company, in the amount of three thousand dollars, upon a certain house standing upon the [466]mortgaged premises, as further. security for said note; and that the said house was consumed by fire before the commencement of this action. It is further alleged in said rejected pleadings that the defendants had made all the proper proof of the loss to said insurance office, and took all the steps necessary under the law and the conditions of the said policy, in order to render said money due under said insurance, and requested the plaintiff to collect said insurance money, and apply it upon the said note secured by said mortgage as aforesaid, and that plaintiff has refused so to do. It is also alleged in the cross-complaint that there was a conspiracy between the plaintiff and the said insurance company to defeat said insurance. It is prayed in the said answer and cross-complaint, that plaintiff be compelled to proceed and collect said insurance money, and apply it to the note and mortgage sued on in this case.