Bennett v. Ukiah Fair Ass'n

WASTE, C. J. Motions to dismiss.

Plaintiff, the holder of a mortgage on certain real property owned by the Ukiah Fair Association, appellant here, which property was also subject to a prior deed of trust, commenced this action to require the trustees, who were then proceeding to sell under the deed of trust, to impound and hold for his benefit any and all funds received in excess of the amount required to discharge the prior trust deed indebtedness. The association, as owner of the property, filed a cross-complaint, naming as cross-defendants the trustees, respondents here, wherein it requested a declaration of rights under the deed of trust and a decree restraining any sale of the property by such trustees upon the grounds they had not been properly substituted as trustees, and that they had improperly instituted proceedings to sell within ninety days after the publication of the notice of default and election to sell and that any sale by such trustees would therefore be invalid and place a cloud upon its title. The trustees interposed a general demurrer to the cross-complaint- which was sustained. Upon refusal of the cross-complainant to amend, judgment of default was entered against it on the cross-complaint. Thereafter the trustees proceeded with the sale under the trust deed and plaintiff, as holder of the subsequent mortgage, bought in the property.

The trustees, as respondents, move to dismiss the cross-complainant’s appeal from the judgment on the cross-complaint upon several grounds, some of which, in effect, overlap. [234]Simplified, it is requested that the appeal be dismissed because an asserted adverse party (the plaintiff-mortgagor) was not named or served as a respondent, that the transcript is incomplete and that by reason of the sale by'the trustees the issues have become moot. The plaintiff, and omitted “adverse” party has also filed a motion to dismiss, urging the same grounds.

We are satisfied that the plaintiff is an “adverse party” within the meaning of our decisions. In Johnson v. Phenix Ins. Co., 146 Cal. 571, 575 [80 Pac. 719], an “adverse party” is defined as “one 1 whose rights may be affected by a reversal of the judgment..... Every party whose interest in the subject-matter of the appeal is adverse to or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken, is, we think, an “adverse party”, . . . irrespective of the question whether he appears upon the face of the record in the attitude of plaintiff or defendant or intervener’; . . . The question is whether the judgment gives . . . something which will be taken away by a reversal.” MacDonald v. Superior Court, 101 Cal. App. 423, 425 [281 Pac. 672], is to the same effect.