Collins v. Bridge Investment Co.

SHENK, J. The plaintiff has appealed from a judgment quieting the defendant’s title to certain described real property. The appeal was taken on the judgment roll alone. The amended complaint contained two causes of action. In the first cause of action the plaintiff alleged ownership of the real property, and the execution of a note and a trust deed in favor of the defendant; that he had defaulted in the payments required by the provisions of the trust deed note but that he had obtained a moratorium decree under the Mortgage and Trust Deed Moratorium Act of 1937 (Stats. [541937], p. 460; Deering’s Gen. Laws, 1937, Act 5101) forbidding a sale of the property until after July 1, 1,939; that on August 31, 1938, the court entered an order terminating the extension under the moratorium act and permitting a sale of the property; that at such sale the property was sold to the defendant, the beneficiary under the trust deed. The plaintiff further alleged that the order terminating the extension was void and that the sale was therefore in violation of the extension. Thus by the first cause of action the plaintiff attempted to base his claim of title on the asserted invalidity of the order terminating the decree granting to the plaintiff an extension under said act.

The second cause of action contained the usual allegations in a quiet title action, and referred to the same described property.

The defendant interposed a demurrer to the first cause of action on both general and special grounds, and a general demurrer to the second cause of action. On November 16, 1939, the court ordered the demurrer to. the first cause of action sustained with leave to amend, and the demurrer to the second cause of action overruled with leave to the defendant to answer. The plaintiff declined to amend the first cause of action.

From the transcript presented by the plaintiff it appears that on January 15, 1940, the plaintiff filed a purported “dismissal of action as to the second count of amended complaint” and that on February 7, 1940, a “judgment on demurrer” was entered decreeing that the defendant “have judgment against the plaintiff as to the first cause of action set forth in the first amended complaint.” The plaintiff’s notice of appeal, dated February 29, 1940, is “from the final judgment rendered and entered in favor of the defendant in said action, and from the whole of said judgment.” The foregoing comprises the entire transcript. It is disclosed without any question, however, that the trial court refused to recognize or permit the attempted dismissal of the second cause of action and proceeded to trial on the issues presented by that cause of action and by the denials in the defendant’s answer and further allegations of fact whereby it sought affirmatively to have the title to said property quieted in the corporation; also that a final judgment was entered for the defendant on proof tendered in support of its affirmative allegations, quieting the title of the defendant to the real property described in the plaintiff’s complaint, It is further indicated that the