Davis v. Chalfant

Vanclief, C. In April, 1882, John E. Chalfant, the defendant herein, commenced an action against the plaintiffs herein (Davis and Jones) to foreclose a mortgage executed by Jones to Aaron Chalfant, and assigned to the plaintiff in that action. Davis was made a defendant therein as a purchaser of the mortgaged premises subsequent to the mortgage. Jones failed to answer, and his default was duly entered. Davis answered, and upon his answer alone the cause was tried, and the trial resulted in a decree for the plaintiff foreclosing the mortgage, entered July 21, 1882. From that decree and from an order denying a new trial, appeals were taken to this court; but because the undertakings on appeal were filed more than one month before the filing of the notice of appeals, the appeals were dismissed on the twenty-sixth day of January, 1885.

The object of the present action (commenced October 26, 1885) is to set aside and vacate the decree o.f foreclosure and the order denying a new trial of the action of Chalfant v. Davis and Jones, and to obtain a new trial of that action.

,The complaint, and exhibits thereto attached, occupy fifty-five pages of the transcript, the exhibits consisting of the judgment roll and the statement on motion for new trial in the foreclosure action. To this complaint the defendant demurred, on the ground “that it does not state facts sufficient to constitute a cause of action against him.”

The demurrer was sustained; and upon failure of plaintiffs to amend their complaint, final judgment was rendered in favor of the defendant. From this judgment the present appeal is taken; and whether or not the demurrer should have been sustained, is the only question to be decided.

The gravamen of the complaint is, that through and by the negligence, fraud, or mistake of James T. Rogers, the attorney for the defendants in the foreclosure suit [629](plaintiffs here), the undertakings on appeal from the decree and order in that suit were not filed at or within the time required by law, in consequence of which said appeals were dismissed; “ that the dismissal of said appeal by the supreme court aforesaid was wholly and entirely caused by the false representations, statements, and erroneous advice and instructions to plaintiffs” by their attorney; “ that but for said false representations, statements, and erroneous advice and instructions, plaintiffs could have filed, or caused to be filed, at said time, said undertakings on appeal, and the said appeal could and would have been perfected in accordance with law, and the same would have been heard and decided by said supreme court according to its merits; .... that the judgment and order denying the motion for new trial, made and entered in said cause, were and are unjust and inequitable, and against law; and as plaintiffs are informed and verily believe, would have been reversed by the supreme court of the state of California, had the appeal therein been properly perfected.”