Johnson v. Reed

Citations

• 125 Cal. 74
• 57 P. 680
• 1899 Cal. LEXIS 803

Syllabus

<p>Action to Vacate Fobs closure and Deed—Motion for New Trial—Presumption of Pendency.—In an action to vacate a decree of foreclosure, and a deed executed thereunder, and to be allowed to redeem, where the complaint shows that a motion for a new trial was made in the original action, in the absence ■of any averment to the contrary, it will be presumed that the motion is still pending and undetermined.</p> <p>Id.—Abandonment of Motion by Codefendant.—An averment that one of the codefendants in the foreclosure suit had changed his attorneys and abandoned the motion, is insufficient to show that the plaintiff here was precluded from prosecuting his own motion, or from appealing from the judgment in the original action.</p> <p>Id.—Independent Action—Grounds Available in Original Action.—The plaintiff in an independent action to vacate a judgment rendered in another action cannot avail himself of any grounds which were available to him in the original action, and which he has sought to have reviewed by motion for a new trial therein, and might have had reviewed upon appeal.</p> <p>Id.—Insufficient Complaint—Pbematube Fobeclostjbe—Fbaud— Adjudication.—A complaint in an action to set aside a foreclosure decree and sale, which averred that one of the defendants to such action had fraudulently induced the premature commencement of the foreclosure suit, that he might obtain title under the sale, and that the answer therein showed that the time to commence the action had been extended, and that judgment was rendered for the plaintiff, shows on its face that the court must have found and adjudged that the action was not premature, and is insufficient to show any fraud, or any ground for relief.</p>