Redlands Hotel Ass'n v. Richards

HAYNES, C. The Redlands Hotel Association, a corporation, brought an action to foreclose a chattel mortgage made by [570]Richards upon certain hotel furniture to secure a promissory note made by him and one David Weh to the plaintiff, and indorsed before delivery by John H. Jones (both of whom were made defendants), and which, as was alleged in the complaint, was subject to a prior mortgage made by Richards to said Jones upon the same furniture. The court found for the plaintiff, and entered judgment directing a sale of said propert-y to pay the amount found due to the plaintiff, and appointed a commissioner to make such sale; but further found and decreed that all of the mortgaged property was subject to a first and prior chattel mortgage given by defendant Richards to defendant Jones. It was also provided that if the proceeds should not be sufficient to satisfy the amount found due to the plaintiff, the deficiency should be docketed against all the defendants.

An order of sale was issued to the commissioner on November 29, 1897, and on December 1st he made a return thereon to the effect that he made an attempt to levy on the property described in the order of sale for the purpose of selling the same, but found that it was subject to a prior mortgage found in the decree to be a prior lien upon the property directed' to be sold; that the amount secured by said prior mortgage exceeded the value of the property, and if sold would not pay the first chattel mortgage; that he was unable to take possession of the property for lack of the necessary money to pay the lien of the first mortgage, and therewith returned said writ wholly unsatisfied, and certified the deficiency to be eight hundred and seventy dollars and twenty-three cents; and for said sum a deficiency judgment was thereupon docketed against all the defendants. Afterward, an execution was issued upon said deficiency judgment and levied upon other property of defendant Richards, who thereupon procured an order against the plaintiff to show cause why said deficiency judgment should not be vacated and said execution quashed. The application was heard upon affidavits setting out the foregoing and other facts, and upon the files and records in said cause, and upon the hearing an order was made quashing the execution and vacating the deficiency judgment, and from that order the plaintiff appeals.

The affidavits, so far as the3 relate to the value of the mortgaged property, are conflicting; that of defendant Richards al[571]