Erkins v. Ayer

Citations

• 58 Cal. 310
• 1881 Cal. LEXIS 213

Syllabus

<p>Foreclosure—Answer—Gross-complaint—Waiver or Service—Practice.—In an action of foreclosure against the mortgagor and another, the latter filed an answer setting up a judgment lien against the mortgagor, and the latter in open Court waived service thereof, and the judgment directed that his claim should be paid out of the surplus funds arising from the sale of the mortgaged premises.</p> <p>Held, upon appeal by the mortgagor, that he treated the pleading as an answer, and went to trial on the theory that it was such, and that it was too late to say that it was a cross-complaint, and that, if it was conceded that it was, the mortgagee waived service.</p>