Foster v. Branen

172 P. 382, 178 Cal. 118, 1918 Cal. LEXIS 425

• Court: California Supreme Court
• Decided: April 12, 1918
• Docket: L. A. No. 4173. Department One.
• Status: Published

Opinion

SHAW, J.

The defendants, Julia P. and C. D. Warden, appeal from the judgment.

The action was to foreclose a mortgage executed by the defendant, Helen Branen, upon a tract of land subsequently conveyed to the defendant, Julia P. Warden. Helen Branen made no answer to the complaint. Julia P. Warden and C. D. Warden, who was interested only as the husband of Julia P. Warden, filed an answer denying the execution of the note and mortgage sued on, denying also the payment of $15 for a search of title, and the reasonableness of the sum of money demanded as attorney’s fees by the plaintiff, and further alleging that the plaintiff was estopped from maintaining the action by reason of the fact that he had prosecuted three prior actions on the same mortgage and note, all of which had been dismissed.

The evidence shows that the previous actions referred to were dismissed by the clerk on the direction of the plaintiff in the ease. There is no merit in the claim that such a dismissal is a bar to a subsequent suit. It appears that at the time the dismissal was ordered the defendants had paid a part of the interest due on the note. There was no settlement of the cause of action nor anything which purported to be a decision against the plaintiff on the merits of the case. No other question is presented.

The appeal is frivolous and obviously taken for delay only. The case calls for the imposition of damages, which the court fixes at the sum of $100.

It is ordered that the judgment be affirmed and that plaintiff recover of the appellants, Julia P. and C. D. Warden, the sum of $100 as damages by the appeal, together with costs.

Sloss, J., and Richards, J., pro- tern., concurred.