Pauly v. Rogers

Citations

• 121 Cal. 294
• 53 P. 808
• 1898 Cal. LEXIS 897

Syllabus

<p>Foreclosure—Junios Mortgage—Credit ot Surplus—Right to Foreclose upon Other Property.—A junior mortgagee made a party defendant in foreclosure, may plead his mortgage, and ask that any surplus derived from the sale of the property subject to both mortgages, be applied as a credit upon his note; and, by so doing, he in no sense brings an action to foreclose his mortgage, and is not barred from thereafter bringing an action to foreclose the mortgage upon other property included therein, which was not subject to the prior mortgage.</p> <p>In.—Answer—Cross-complaint — Parties—Stipulated Judgment.—Where-the junior mortgagee filed an answer merely admitting all the allegations of the complaint, and also filed a cross-complaint, in which the junior mortgage was fully pleaded, and a judgment' of foreclosure thereof was asked, but a necessary party to such judgment was not brought in, and no súch judgment was had, but a stipulated judgment was rendered for foreclosure of the plaintiff’s mortgage, and the application of the surplus upon the indebtedness due the defendant, and the case was not tried and submitted to the court, upon the cross-complaint as a pleading demanding affirmative relief, it must he deemed that the court exercised its power to treat the cross-complaint as an answer setting up the junior note and mortgage, and asking for an application of the residue of the proceeds of the sale thereon, and the judgment so rendered is no bar to A subsequent action to foreclose the junior mortgage upon other property.</p>