Hutchings v. Ebeler

46 Cal. 557

Opinion

By the Court:

The default of this plaintiff in the foreclosure suit brought by Ebeler, was an admission of all the material facts averred by the plaintiff in that case, and authorized the Court to render any decree in acordance with those admitted facts. It was sought by that suit to foreclose the mortgage as against the present plaintiff, and procure an order of sale of the mortgaged property to satisfy the amount due upon his note. The decree ordered a sale of the right, title, and interest of this plaintiff (then defendant) in the mortgaged premises, and this relief was properly awarded. The plaintiff does not pretend that at the date of the commencement of the present suit he had acquired any further or other title than that which he had at the date when the foreclosure proceedings were instituted. IE he desired to prevent the sale of the land and confine the operation of the decree of foreclosure to the interest of Baldwin, he should have preferred his claim in that proceeding. He had his day in Court, and upon well settled principles is now estopped from contesting the validity of the decree. The demurrer was properly sustained.

Judgment affirmed.