Blumberg v. Birch

Citations

• 99 Cal. 416
• 34 P. 102
• 1893 Cal. LEXIS 681

Syllabus

<p>Foreclosure of Mortgage—Service of Summons by Publication aqainst Nonresident Mortgagor—Jurisdiction—Void J udgment for Deficiency.—In an action to foreclose a mortgage, the court by constructive service of the summons ny publication against a non-resident mortgagor, acquires jurisdiction to ascertain the amount secured by the mortgage, and to make and enter a valid decree of foreclosure directing a sale of the mortgaged property, and the application of the proceeds to the payment of the amount secured, including costs and expenses, but does not thereby acquire j urisdiotion to enter or docket a personal judgment against the mortgagor for any deficiency left unpaid by the proceeds of the sale, and such personal judgment if entered and docketed is void.</p> <p>In.—Action for Deficiency—Subsisting Indebtedness—Maxim.—Though do valid judgment can he entered for deficiency against a non-resident mortgagor, the deficiency constitutes a subsisting indebtedness upon which an action may be brought after the mortgage security has been exhausted by a foreclosure sale, whether the action he viewed as based on the note upon which the proceeds of sale may be treated as a payment, or as on an indebtedness resulting from the facts stated, the maxim «6í jus ibi remedium being applicable to the case.</p>