Byrne v. Hoag

McFarland, J. This is an appeal by the defendants from a judgment against them entered on the twenty-eighth day of November, 1895.

The facts of the case, as they appear upon the record, [3]are as follows: In 1893, the plaintiff commenced this action against the defendants to foreclose a mortgage given by the latter to the/former to secure a promissory note for two thousand dollars, dated April 27, 1892, payable in three years from date, with interest at twelve per cent per annum, payable annually. At the time of the commencement of the suit the first installment of interest was due, and it was alleged in the complaint “ that no sum either on the account of the principal or interest on the said note has been paid”; and the prayer is for judgment for the said sum of two thousand dollars and interest, and that the usual decree be made for the sale of the mortgaged premises, the application of the proceeds thereof to the satisfaction of the whole amount of the note, and for a deficiency judgment. In the answer the defendant denied that there was anything more due than the one year’s interest, and prayed that the plaintiff have no greater relief than a decree with respect to said interest. The court rendered a judgment for the sum of two hundred and forty dollars, with interest thereon at the rate of seven per cent per annum, from the twenty-seventh day of April, 1893, and for an attorney’s fee of one hundred dollars and costs, and decreed that the mortgaged premises be sold to satisfy that amount. This was all that the judgment embraced. The decree was signed by the judge of the superior court in which the action was pending, and was entered on the twenty-seventh day of November, 1893. Findings were waived.

On the fifteenth day of August, 1895, more than a year and a half after the entry of said judgment, plaintiff’s attorneys served upon defendants and their attorneys a notice that on the thirtieth day of September, 1895, or as soon thereafter as a hearing could be had, they would move the court “on all the papers on file in this action, and the records of said case,” for leave to amend the said judgment entered on the 28th of November, 1893, so that it should read in accordance with the form of judgment annexed to said notice, and [4]marked “ Exhibit A.” This notice was accompanied by an affidavit of one of plaintiff’s attorneys, the substantial part of which is as follows: “That judgment in said action was inadvertently entered, failing to comply with the decision of the court in this action in this: That said decree did not provide for the payment of the principal or interest thereafter to become due on the note sued upon in this action; that by inadvertence the clerk was allowed to enter said defective judgment; that the defect in said judgment was not noticed by the plaintiff’s attorneys until May, 1895”; and that the pressure of business, etc., had prevented the discovery of the defect of the judgment. This motion was opposed by the defendant; and on the hearing of the motion, against the objection of defendants, there was introduced a paper indorsed “opinion,” signed by the said judge of the court, in which it is said: “In this action plaintiff is entitled to judgment only for the interest on the mortgage note now due and unpaid. I am satisfied that under the wording of the note and mortgage, which are to be construed together, that section 728 should govern the foreclosure proceedings, and that the rule as laid down in the cases of Bank of San Luis Obispo v. Johnson, 53 Cal. 99, and Yoakam v. White, 97 Cal. 286, should apply. Attorney’s fee, 100.” This paper was not marked “filed,” and there was no evidence that it ever was in the possession of the clerk of the court, and no evidence as to where it was obtained. After the hearing of the motion, the court made an order as follows: “It is ordered that the judgment entered in this action on the twenty-eighth day of November, 1893, be amended to read as set forth in said notice of motion, and that the same be entered as of date the twenty-eighth day of November, 1893.” This order was dated December 17,1895, and the judgment prepared by counsel for plaintiff, and annexed to his said notice of motion, was then entered. This judgment then so entered differed slightly from the first judgment in the amount found due, and then proceeded at length to provide that