Johnston v. S.F. Savings Union

Citations

• 75 Cal. 134
• 16 P. 753
• 1888 Cal. LEXIS 493

Syllabus

<p>Opinion—Findings.—An opinion of the trial court is not the “findings.”</p> <p>ID. —Collateral Attack. —The question of the sufficiency of the findings support the judgment cannot be made on a collateral attack. Service oe Summons—Appearance—Fictitious Name — Insertion oe True Name — Collateral Attack. —Where a person is not named as a par(;y the action, or served with summons, but files an answer which recites that he was sued under a certain fictitious name, to which no objection is made, and the ease is tried and judgment rendered against him, he is hound by such judgment. The non-insertion of his true name by amendment to the complaint does not render the judgment void on a collateral attack.</p> <p>Foreclosure — Litigation or Adverse Interests — Collateral Attack. — While adverse interests cannot properly he litigated in foreclosure, yet if they are put in issue, tried and determined, the judgment is not void on a collateral attack.</p> <p>Law or the Case. — Instance of an application of the rule.</p> <p>Community Property—Act or 1850—Power or Survivor — Mortgage. — Under the act of 1850, the surviving husband had authority to keep alive a debt and mortgage made before the wife’s death; and in determining the identity of the debt and mortgage, equity will look beneath the form of the transaction. But he had no authority to make an entirely new mortgage to raise money for the prosecution of new enterprises.</p> <p>Condition or Equitable Belief. —Where the interest of a mortgagor escapes being bound by a decree in foreclosure through a slip in the proceedings, and he subsequently comes into equity to be relieved of the cloud cast upon his interests by reason of such proceedings, he will be required, as a condition of relief, to pay his proportion of the mortgage debt.</p> <p>Id. — In imposing a condition, a court of equity will take into consideration, all the circumstances, in order to arrive at the justice of the case, without regard to the strict legal right