Boob v. Hall

Citations

• 107 Cal. 160
• 40 P. 117
• 1895 Cal. LEXIS 727

Syllabus

<p>Appeal by Mortgagor—Servios op Notice—Defaulting Codefbndants. In an action to foreclose a mortgage, where an averment in the complaint, that the interest of othei defendants than the mortgagor in the mortgaged property is subject to the lien of the plaintiff, is admitted by their default, and the judgment merely forecloses their interest in the property, upon an appeal taken by the mortgagor alone, it is sufficient to serve the notice of appeal upon the plaintiffs, and it need not be. served upon the defaulting codefendants, who could not be affected a reversal or modification of the judgment.</p> <p>Id.—Description of Mortgaged Property — Certainty — Sw Water Stook—Capital Stock of Water Company—Ceív. . Where the mortgage, in addition to the land mortgaged, di _ ¿bed certain shares of water stock, and the complaint described the same in the same terms in which it had been described in the mortgage, the mortgagor upon appeal cannot object to uncertainty in the description; and where it does not appear that a certificate had been issued for shares' of the stock of a water company, the description of it as so many t.has os of its capital stock, in the mortgage and in the complaint, is sufficir n¡ to identify the property mortgaged, as well as for the purpose of ?, ¡o under the judgment, and such sale will transfer any title v/?” I no mortgagor might have to shares of the capital stook for which no r; -<- tifieate had been issued.</p> <p>Id.—Allowance of Counsel Pees—Absence of Agreement.—In the absence of an agreement for the payment of counsel fees in a mortgage the court is not authorized to include counsel fees as a part of the judgment; and where the complaint contains no averment of any agreement on the part of the mortgagor to pay a counsel fee, and the copy of the mortgage annexed to the complaint does not contain any such stipulation, no counsel fees can be allowed, although prayed for.</p>