Evans v. Johnston

Temple, J. This action was brought to foreclose a mortgage of real estate, executed by one Joseph Sivley, in favor of plaintiff, on the twelfth day of June, 1885. Said Sivley died December 10,1886, and was owner of the real estate at the time of his death. The mortgage was given to secure the paj^ment of a note for four hundred dollars, and interest. It became due June 12, 1886. [182]The suit was commenced June 23,1894. Defendant Johnston was appointed administrator of the estate of Joseph Sivley, June 10, 1887, and is still such administrator. July 19,1887, plaintiff commenced an action in the superior court of Lassen county to foreclose this mortgage, and caused summon; to be issued on the same day. Nothing further was done in the case until January 20, 1894, when an order dismissing the case without prejudice to.a new action was made by the court and entered in its minutes.

On the twenty-eighth day of July, 1887, and within the timé allowed by law for the presentation of claims against the estate, plaintiff presented to the administrator his claim upon the note, duly verified, and the same was then allowed by the administrator. It is found that the mortgage was also presented as a part of the plaintiff’s claim, but this finding is challenged, as one not supported by the evidence. According to the transcript, a copy of the mortgage was not attached to, and presented with, the claim, nor was it described or reference made to the date, volume, or page of its recordation. The mortgage was, therefore, not presented.

The answer contains denials of the presentátion of the claim, and of nearly all the allegations contained in the complaint, and sets up several defenses, to wit: 1. Payment; 2. A former action for same cause; 3. Pending of another action between the same parties on the same cause of action; and 4. Statute of limitations.

The points presented on the appeal arise upon certain specifications of the insufficiency of the evidence to support the findings. The appeal was taken within sixty days after rendition of judgment.

1. In regard to the plea in abatement. It was shown or admitted that the cause of action in the former case was the same as in this, and the parties are also substantially the same. As already stated, that action was dismissed, on motion of the plaintiff, by the court, and an order to that effect duly entered in the minutes of the court. Again, after this action was commenced, [183]