Pauly v. Rogers

GAROUTTE, J. The facts of this case may he briefly stated as follows: One C. W. Rogers mortgaged certain real estate to the Security Savings Bank and Trust Company. Thereafter he and defendant Dora' I. Rogers mortgaged the same real estate, and also other real estate, hy one instrument to the Pacifie Bank. This plaintiff, as the successor in interest of the Pacifie [295]Bank, has brought this action to foreclose the mortgagé made to the bank. Prior to the commencement of the present action the corporation holding the first mortgage brought its action of foreclosure, making the Pacific Bank a party defendant. In the present action these defendants by way of defense set out the foregoing facts and. others to the effect that the Pacific Bank in the action of foreclosure, where it was made a party defendant, admitted by answer all the allegations of the complaint. They also alleged that the bank at that time filed a cross-complaint in which it set out the execution of the note and mortgage sued upon in the present action, and also alleged the nonpayment of such note, and prayed for judgment of foreclosure, with interest and attorney’s fees. The defendants’ answer in this action further alleges that such proceedings were had in the aforesaid action that a judgment and decree was entered as follows: (Setting forth by exhibit attached a copy of the decree of foreclosure). This decree recited the following stipulation: “It is hereby stipulated and agreed by and between the attorneys for the plaintiff and defendants in this action, that upon the sale of the property described in plaintiff’s complaint for the foreclosure of the mortgage in this action, the surplus, if any there be after satisfying the plaintiff’s judgment and costs, shall be turned into court and applied in satisfaction in whole or in part, as the case may be, of the indebtedness due by the defendant Charles W. Rogers to the Pacific Bank, as set forth in the answer and cross-complaint of said Pacific Bank in this action, and that the decree directing the sale of the property described in the mortgage foreclosed by the plaintiff be drawn in accordance with this stipulation, and that findings of fact herein be waived.’’ This stipulation' is signed by the attorneys for plaintiff in that action, the attorneys for Charles W. Rogers, and by the attorney for the Pacific Bank.

. The court by its decree found the amount due plaintiff; that plaintiff was entitled to have his mortgage foreclosed; that Charles W. Rogers “is indebted to the defendant, the Pacific Bank, in the sum of five thousand nine hundred and ninety-three dollars and ninety cents, with interest thereon from October 19,1891, at the rate of óne per cent per month, compounded