Westbay v. Gray

Citations

• 116 Cal. 660
• 48 P. 800
• 1897 Cal. LEXIS 604

Syllabus

<p>Eoreolosure of Mortgage — Pleading Credits in Complaint — Insufficient Denial of Nonpayment.—Where the complaint, in an action to foreclose a mortgage, gave credits in the complaint for payments of interest and part of the principal of the note secured, and averred that no other part of the principal sum or interest had been paid, denials in the answer “that no part of the principal sum mentioned in said promissory note has been paid,” and “ that the whole of said principal and interest has not been paid,” are evasive, and the answer does not present a sufficient denial of the allegations of the complaint, to call for proof of nonpayment on the part of the plaintiff.</p> <p>Id.—Res Ad judicata—Dismissal of Previous Action without Prejudice__The dismissal of a previous action of foreclosure, by leave of the court, without the consent of the opposite party, and which was expressly entered as “without prejudice to the commencement of another action,” is not a bar to another action to foreclose the same mortgage.</p> <p>ID.—Setting Aside Submission—Amendment of Pleadings—Power of Court to Grant Dismissal.—Where an order of submission of a cause after trial by the court, has been set aside, and leave- given to amend the pleadings, the case stands as though no submission had ever been had, and the court has power, under such circumstances, to grant a dismissal of the cause without prejudice to another action.</p> <p>Id.—Estates of Deof,ased Persons—Presentation of Mortgage—Averment in Former Action not Conclusive—Insufficient Presentation.-—The averment in the former action that plaintiff had presented the mortgage as a claim against the estate of the deceased mortgagor, is not conclusive, where the answer in that action denied such presentation, and the plaintiff failed to prove it, and where the court find in the present action that there was no proper presentation of it prior to the first action.</p> <p>Id.—Second Presentation of Claim—Estoppel.—If a party makes an