McDermot v. Barton

Citations

• 106 Cal. 194
• 39 P. 538
• 1895 Cal. LEXIS 591

Syllabus

<p>Foreclosure of Mortgage — Jurisdiction — Sale by Commissioner— Pleading—Prayer of Complaint.—The court has jurisdiction in an action to foreclose a mortgage to order a sale of the mortgaged property by a commissioner, although the prayer of the complaint follows the usual form and asks for a sale of the mortgaged property by the sheriff, the essence of the prayer being only for a judicial sale.</p> <p>Id.—Variance Between Decree and Order Appointing Commissioner— Amendment.—The fact that the decree as entered by the court ordered the encumbered property to be sold by the sheriff, while an order made and entered on the same day appointed a commissioner to discharge the same duty, is an oversight of the court, not calling for an appeal, and may he remedied at any time by a simple motion to amend and correct the decree by striking out the word “sheriff,” and inserting “commissioner, ” wherever they occur in the decree.</p> <p>Id.—Constitutional Law—Power to Appoint Commissioners—Uniformity of Law.—Section 726 of the Code of Civil Procedure, conferring upon the court authority to appoint commissioners to sell mortgaged property, is not in violation of the fifth section of article XI of the constitution, requiring that the duties of a sheriff shall be prescribed by general and uniform laws.</p> <p>Id.—Duties oe Sheriff.—It is no part of the duty of a sheriff, as such, in the absence of statutory provision, to sell property under a sale in foreclosure, and he has no duty to perform in case of sale of real property under foreclosure, where the court appoints a commissioner to make such sale by authority of law.</p> <p>Id.—Authority of Court in Foreclosure Cases—Discretion.—In cases of foreclosure of mortgages the court is authorized to appoint a commissioner to sell the encumbered property, in every case, at its discretion.</p>