Cook v. De la Guerra

Citations

• 24 Cal. 237

Syllabus

<p>Demurrer—Office of. — A statement of facts in a demurrer is not admissible. The only office of a demurrer is to raise issues of law upon the facts stated in the pleading demurred to.</p> <p>Mortgage—Defense Against.—It is no defense, in an action to foreclose a mortgage upon real estate, that it was executed by the heirs after the death of their father, from whom they inherited the property, and that the deceased left debts which remain unpaid, and that the estate is being administered upon in the Probate Court.</p> <p>New Trial on Ground of Surprise.—A new trial will not be granted on a showing, alone, of surprise, which ordinary prudence could not have guarded against, but it must also be made to appear that the moving party has a valid defense to some material part of the plaintiff's cause of action, and that on the new trial the result may be different from that on the first trial.</p> <p>Mortgage by Heirs—Foreclosure of.—The foreclosure of a mortgage, executed by the heirs of the deceased, upon property inherited from him, does not divest or injuriously affect the rights of the creditors of the deceased ¡ but the purchaser at the foreclosure sale will hold the property, subject to the proceedings in the Probate Court, for the settlement of the estate of the deceased.</p> <p>Finding op Facts—Exception to. — A judgment, rendered in an action tried by the Court, without a jury, after the first day of July, 1861, will not be reversed for want of a finding of the facts, unless exceptions be made in the Court below to the want of a finding.</p>