Stahler v. Seaboard Mortgage Corp.

MONCUR, J., pro tem. This is an appeal from an order of the trial court denying a motion by defendant and appellant Maurine Wissmath to vacate and set aside a judgment entered against her, which motion was based upon the grounds that the service of summons and complaint in said action was false and that no service whatever had been made upon her of the summons and complaint in said action; also extrinsic fraud alleged to have been practiced upon the court and that the court- had no jurisdiction to render the judgment and decree against the defendant as hereinafter mentioned.

It appears from the record that on September 16, 1926, defendant Seaboard Corporation executed a note in the sum of $3,250 to plaintiff, payable three years after date, with .the usual conditions for the payment of interest. Contemporaneous with the execution of said note there was also exe-1. [116]cuted by defendant Seaboard Mortgage Corporation a mortgage to secure the payment of said note, which mortgage was recorded Séptember 17, 1926, in the records of Los Angeles County; that by written instrument dated April 23, 1930, and recorded June 28, 1930, in the official records of Los Angeles County, it was agreed by and between plaintiff and Seaboard Mortgage Corporation that the time of payment of said note and mortgage be extended to three years from September 16, 1929. It further appears that by deed dated July 22, 1932, and recorded July 23, 1932, executed by defendant Seaboard Mortgage Corporation, the property described in said mortgage was transferred to defendant and appellant Maurine Wissmath, who, at the time of the filing of the complaint, it is alleged was the record owner of said property.

Default being made in the payment of interest and in the payment of taxes upon the mortgaged property, plaintiff commenced this action to foreclose the mortgage against the Seaboard Mortgage Corporation, Maurine Wissmath, Arthur J. Wissmath, and fictitiously named defendants. ' The defendant corporation appeared in the action, but its only allegation of denial which is material to the matter herein is that it alleges that defendant corporation admits that Maurine Wissmath is the owner of the property mentioned in plaintiff’s complaint.

The return of the summons shows that defendants, except those fictitiously named, were served as follows: Seaboard Mortgage Corporation, August 3, 1932; Maurine Wissmath, Los Angeles, August 3, 1932; Arthur J. Wissmath, August 3, 1932; the affidavit of service is made by one W. E. Malott. Default of defendants Maurine Wissmath and Arthur J. Wissmath for failure to appear was entered on’ August 15, 1932.