Clark v. Smith , 1883 Cal. LEXIS 469 ( 1883 )

Per Curiam.

Hiram Smith deceased January 17, 1870. In his lifetime he gave to plaintiff his promissory note, and to secure the same executed a mortgage upon certain real property. After Smith’s death plaintiff presented to Hannah M. Smith, executrix of his estate, his claim for the payment of his mortgage debt, which she rejected, May 28, 1870. Plaintiff began this suit to foreclose the mortgage on the 26th of August, 1870.

In the summer of 1880, on application of plaintiff, an order was made that service of summons by publication be made upon Hannah M. Smith, and an alias summons was then issued. Subsequently Hannah M. Smith moved the court to dismiss the action against her, and to vacate the alias summons, on the ground that plaintiff had failed to prosecute the action with due diligence.

The motion was denied, “ but upon condition that the plaintiff file herein within five days after receiving notice of this order, a stipulation waiving all claim for judgment for any deficiency that may arise after the sale of the mortgaged premises,” etc. Hannah M. Smith appeals from this order.

It is stated in the points of appellant’s counsel that in his lifetime Hiram Smith sold the mortgaged land to one B. F. Moulton.

In his affidavit, filed by appellant on her motion to dismiss in the court below, John W. Stewart swears that he is the sole surviving executor of B. F. Moulton, deceased, and that “ said B. F. Moulton was, at the time of his death, the owner of the land in the complaint described, having acquired the same by purchase from Hiram Smith,” etc. Appellant on said motion also filed the affidavit of James F. Gossett, who swears therein that he was appointed by the Probate Court one of the appraisers of the estate of B. F. Moulton, deceased, that the premises described in the complaint were included in the inventory of the estate of Moulton.

It thus appears that the appellant has become merely a nominal defendant. The order of the court below by its terms limits the plaintiff to a collection of his mortgage debt out of the land mortgaged, the title to which, by appellant’s own showing, had passed to Moulton in the lifetime of Hiram Smith. Under the circumstances, even if we would have otherwise been inclined to interfere with the discretion of the Superior Court, we decline to reverse an order which sufficiently protects the estate of Hiram Smith and his heirs.

Judgment affirmed.