Chapman v. Pennie

PER CURIAM. The deceased, John Bensley, made his promissory note to the Nevada Bank of San Francisco, November 24, 1875, for the sum of $80,000, payable one year thereafter at the rate of one and one-fourth per cent per month, and to secure the same executed to the Nevada Bank [971]a mortgage upon certain real estate in the city and county of San Francisco. January 19, 1881, the Nevada Bank commenced an action upon the promissory note against Bensley and others for the foreclosure of the mortgage given as security for the payment therefor. Bensley was absent from the state, and service upon him was had by the publication of summons. Judgment was rendered in that action, January 5, 1882, for the foreclosure of the mortgage and the sale of the premises, and providing that in case of a deficiency in the proceeds of the sale the judgment for such deficiency should be docketed against the defendant, Bensley. Under this judgment an order of sale was issued to the sheriff of the city and county of San Francisco; and on the 10th of August, 1882, he returned the order of sale, from which it appeared that, after applying the proceeds of the sale upon the judgment, there was a deficiency of $37,721.51. Judgment for this deficiency was then docketed by the clerk against Bensley. December 10, 1889, the Nevada Bank assigned the said promissory note to T. M. Osmont, and on the 21st of May, 1890, Osmont assigned the same to the plaintiff. The plaintiff has brought this action upon the aforesaid promissory note, setting forth in his complaint that the sum of $37,721.51, with interest, is unpaid thereon, and alleging that on the 26th of May, 1890, he presented his claim for the said deficiency to the defendant, as the administrator of Bensley’s estate, for allowance, and that it was by him rejected. Judgment was rendered for the defendant in the court below, and the plaintiff has appealed directly therefrom upon the judgment-roll alone, without any statement or bill of exceptions.

In his brief herein counsel for appellant states: “The sole question involved in the case—assuming that such defense may be made without pleading—is whether an action can be maintained against an administrator for a deficiency arising upon the sale of mortgaged premises pursuant to a decree of foreclosure against the decedent in his lifetime, in a case where the decedent, the mortgagor, was a nonresident of this state at the time of the commencement of the action to foreclose, remained absent from the state until after the foreclosure and sale thereunder, and until his death, and never appeared in the action, no jurisdiction having been acquired