Hawley v. State Assurance Co.

187 P. 1, 182 Cal. 111, 1920 Cal. LEXIS 493

• Court: California Supreme Court
• Decided: January 26, 1920
• Docket: L. A. No. 4759.
• Status: Published

Opinion

WILBUR, J.

The record in this case is made up under section 953a et seq. of the Code of Civil Procedure. The appellants do not print in their brief the pleadings, findings, or judgment, nor any portion thereof; nor is there more than a fragmentary statement of some of the evidence. From the statement in appellants’ brief it appears that the action is to set aside a decree in a previous action for the foreclosure of a mortgage, upon the ground that appellant Anna M. Hawley, the owner of the property mortgaged, was never served with summons in the foreclosure proceeding, and that the appearance entered in her behalf was unauthorized. No portion of the pleadings or findings in the foreclosure ease is printed in appellants’ brief. [1] Under these circumstances appellants have failed to print sufficient of the record to establish any error on the part of the trial court. Notwithstanding this, we have examined the typewritten transcript sufficiently to determine that there is no mérit in the appeal.

Appellants allege that Anna M. Hawley is the owner of the property in question “subject only to a certain mortgage made by Horace Cline and Mildred L. Cline and a deed of trust executed to Libbie H. Bathriek.” The findings are that previous to the bringing of the foreclosure proceedings Mrs. Hawley had conveyed the property by grant deed, on June 6, 1907, to Libbie H. Bathriek, which deed was on that date duly recorded, and that appellant Anna M. Hawley did not thereafter own the property. Proceeding was instituted by respondent to foreclose the above-mentioned mortgage of the Clines, appellants’ grantors, and also to foreclose a deed of trust, executed by Mrs. Bathrick after the conveyance to her, to secure an obligation of appellant C. O. Hawley. In that action, the record owner, Mrs. Bathrick, appeared and defended, and judgment, was rendered against her. [2] This decree was sufficient to foreclose any interest of the appellant Mrs. Hawley, reserved by her when she conveyed the property to Mrs. Bathrick, not shown by the record. (Code Civ. Proc., sec. 726.) [3] Furthermore, the appellants do not show that they have any meritorious defense to the encumbrances foreclosed. (Gregory v. Ford, 14 Cal. 138, [73 Am. Dec. 639]; Gibbons v. Scott, 15 Cal. 284; Matson v. Batto & Sons, 173 Cal. 800, [161 Pac. 1144], and cases cited; Lee v. Colquhoun, 175 Cal. 16, [164 Pac. 894] ; 2 Freeman on Judgments, 4th ed., secs. 495, 498; Black on Judgments 2d ed., secs. 376, 377; High on Injunctions, 4th ed., secs. 126, 229a; Janes v. Howell, 37 Neb. 320, [40 Am. St. Rep. 494, 55 N. W. 965] ; Thomas v. West, 59 Wis. 103, [17 N. W. 684] ; McDonald v. Cawhorn, 152 Ala. 357, [44 South. 395] ; Hockaday v. Jones, 8 Okl. 156, [56 Pac. 1054]; Jeffery v. Fitch, 46 Conn. 601; Wilson v. Shipman, 34 Neb. 573, [33 Am. St. Rep. 660, 52 N. W. 576] ; Meyer v. Wilson, 166 Ind. 651, [76 N. E. 748], and cases cited; Goon v. Jones, 10 Iowa, 131; Newman v. Taylor, 69 Miss. 670, [13 South. 831]; Masterson v. Ashcom, 54 Tex. 324.)

Judgment affirmed.

Shaw, J., Lennon, J., Lawlor, J., Olney, J., and Angellotti, C. J., concurred.

Rehearing denied.

All the Justices concurred.