O'Meara v. DeLamater

BARNARD, P. J. This is an appeal from a judgment foreclosing a mortgage, from an order granting the plaintiff’s motion for judgment on the pleadings, and from an order denying the defendants’ motion for a similar judgment.

The complaint alleges that on September 8,1930, the Southern California Home Building Company, which will be referred to as the building company, executed and delivered to Clarence D. DeLamater and George E. DeLamater a mortgage securing its note for $3,000, payable in five years. A copy of this note is set forth in the complaint and a copy of this mortgage, which was duly recorded, is attached thereto. It is then alleged that on August 15,1932, the two DeLamaters assigned this note and mortgage back to the building company, the assignment being recorded, and that on January 23, 1933, the building company assigned this note and mortgage to Prank J. Monahan, the plaintiff’s testator. A copy of this assignment, which was recorded, is attached to the complaint and contains a statement that the assignment is made “as collateral” for a note of $1,500. It is then alleged “that a balance of $1,500 of the original principal amount of said note and mortgage,” with certain interest, remains unpaid [667]and the prayer is for judgment on said note and for foreclosure of the mortgage in the usual manner.

The defendants answered, alleging that the note and mortgage referred to in the complaint were assigned by the building company to Monahan as collateral for another note for $1,500 which was then executed by the building company and delivered to Monahan. The answers also set up the defense that the note and mortgage described in the complaint are barred by the statute of limitations under section 837, subdivision 1, Code of Civil Procedure.

The plaintiff moved for judgment on the ground that no defense to the action had been set forth in the answers. In support of this motion she filed an affidavit in which she admitted that the note and mortgage sued upon were assigned to Prank J. Monahan as collateral security for a note for $1,500, given to Monahan by the building company, dated January 23, 1933, payable three years after date. Prom a copy of this note, which is set forth in this affidavit, it appears that this note contains the statement “this note secured by mortgage on Lot 22, Block 11, Normal Heights,” which is the same property mentioned in the mortgage sued upon, but it nowhere appears that the mortgage sued upon is the one to which this note refers. The defendants also moved for summary judgment on the pleadings. The two motions were heard together, the plaintiff’s being granted and the defendants’ denied, and this appeal followed.