Bank of America National Trust & Savings Ass'n v. Radford

SHENK, J. The plaintiff sued to foreclose a mortgage alleged to have been given to secure a promissory note executed by the defendants Radford. The defendants A. L. Horton, Louise M. Horton and Cora A. Opie filed answers and cross-complaints. The plaintiff filed demurrers thereto and moved to strike portions thereof. On April 2, 1935, the court granted the motions to strike. On April 8, 1935, the court sustained the demurrers to the answers without leave to amend and entered its decree of foreclosure, from which the bross-complaining defendants, hereinafter referred to as the defendants, have appealed. The record filed on the appeal does not disclose what disposition was made of the demurrers to the cross-complaints.

The defendants claim that the court committed error in its rulings on the motions to strike and on the demurrers. It is also contended that the court erred in granting final judgment without ruling on the demurrers to the cross-complaints. However, in an application by the plaintiff for diminution of the record it appears that the trial court subsequently on November 6, 1935, ordered the entry of an order nunc pro tunc as of April 8, 1935, that the demurrers to the answers and cross-complaints be sustained without leave to amend. The defendants’ only objection to the inclusion of such order as part of the record is based on its contention that the order itself does not expressly indicate that there was any clerical omission from the previous order, and therefore that the court’s mistake, if any, was judicial and not clerical. On the face of the record, however, it is obvious that the omission to couple the cross-[207]complaints with the answers in sustaining the demurrers thereto was merely a clerical misprision. The defendants were hardly justified in relying on such an omission from the court’s order sustaining demurrers to the answers as establishing reversible error, especially when both answers and cross-complaints were filed at the same time. No claim is made that the nunc pro time order as alleged was not made by the trial court. The motion for diminution is therefore granted, and the appeal will be disposed of as though the omitted order were a part of the record.

The merits of the appeal are therefore confined to the questions whether the court erred in granting the motions to strike portions of the answers and of the cross-complaints and in sustaining without leave to amend the plaintiff’s demurrers to the answers and the cross-complaints.

Except for the admission of the corporate character of the plaintiff, and the admission that the answering defendants claim some right and title to the property involved, the answers contain paragraph by paragraph denials of the allegations of the complaint based on the defendants’ lack of information or belief sufficient to enable them to answer. By the first affirmative defense the defendants allege that since the execution of the mortgage they received from the mortgagors deeds to certain lots embraced within the property covered by the mortgage, and that the mortgagees, who were the defendants Huffman, upon payment to them of a certain valuable consideration, agreed to release said lots from the lien of the mortgage; but that, although the mortgagees received and accepted the consideration for the release, and have often been requested to make such release, they have failed and refused to do so. The pleadings show that the plaintiff became the holder of the note and mortgage before maturity. There is no allegation in the answers as to how said agreement for release, if performed on the part of the defendants, would be binding on the plaintiff.