Gould v. Adams , 108 Cal. 365 ( 1895 )

Vanclief, C.

Action to foreclose a mortgage executed by defendant Adams to plaintiff’s testatrix, in which John Wise was made a party defendant on the ground that he had a mortgage on the same land alleged to be subsequent and subject to that of plaintiff. Wise-answered, and also filed a cross-complaint claiming that his mortgage was prior and superior to that of plaintiff' and praying that it be foreclosed as such. On the first, trial of the cause the plaintiff prevailed and the defendant appealed. This court reversed the judgment and remanded the cause for a new trial. (Gould v. Wise, 97 Cal. 532.) Upon the new trial the mortgage of defendant Wise was adjudged to be prior and superior to that of the plaintiff and ordered to be first satisfied from the-proceeds of the foreclosure sale. From this judgment, the plaintiff brings this appeal on the judgment-roll,, containing a bill of exceptions as to matters of both law and fact.

On the former appeal the judgment was reversed on a-state of facts fully set forth in the opinion of the court by Mr. Justice Garoutte. On the new trial the lower court again found the same facts, and nothing inconsistent with nor in avoidance of them. If these findings of fact on the new trial are justified by the evidence, as I think they are, it follows that the former decision is the law of the case.

' Appellant complains that the court failed to find upon-certain specified issues of fact, but, in view of the facts, found, those issues were immaterial. A finding on each of them in favor of the plaintiff would not have necessitated any change in the judgment rendered.

It is further contended that the court erred in denying plaintiff’s motion to strike out defendant’s answer-on the alleged ground that the amended answer is inconsistent with the original answer, in that the latter avers,, and the former denies, that the deed from Wise to Adams. was delivered. But there is no such inconsistency. The amended answer does not deny the delivery of the deed from Wise to Adams, but merely denies that it was delivered at the time of the execution of the mortgage from Adams to plaintiff's testatrix; and this was the effect of the original answer and cross-complaint as construed on the former appeal. The principal ground upon which the first judgment was reversed was that the deed from Wise to Adams had not been delivered at the time the mortgage from Adams to Julia F. Gould was executed.

On the law of the case as determined on the former appeal the judgment should be affirmed.

Searls, 0., and Haynes, 0., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

McFarland, J., Temple, J., Henshaw, J.

Hearing in Bank denied.