Stow v. Schiefferly , 120 Cal. 609 ( 1898 )

CHIPMAN, C.

Action to foreclose a mortgage, executed by defendant Juana Schieiferly, as administratrix, pursuant to an order of the probate court. The defendants failed to answer the complaint; their default was entered, and thereafter the cause came on for hearing. The court found all the allegations of plaintiffs’ complaint to be true, and gave judgment accordingly, from which the appeal is taken' on the judgment-roll alone.

It is alleged in the complaint that the order authorizing the mortgage to be executed was duly given, made, and entered January 23, 1892, and no appeal appears to have been taken from this order. This order is made part of the complaint (Exhibit B) and recites that it was made upon the verified petition of said administratrix; that “all the heirs (except Frederick Schiefferly, who made no appearance, or filed or presented any objection to the hearing or granting of said petition, who does not appeal), namely [giving names], being present in court, pursuant to the order to show cause heretofore duty made by this court, and consenting thereto,” etc. The mortgage is also made a-part of the complaint (Exhibit C) and recites the proceedings under which it was executed, among which it is therein stated that the order was made upon the verified petition of said administratrix. The complaint alleges, among other things, that said administratrix filed her “verified petition for leave to mortgage the real property of said John J. Schiefferly, deceased (appellants’ intestate), to raise the sum,” etc. The complaint then states: “A copy of said petition is hereto annexed marked Exhibit A, and is here referred to and made part of this complaint,” etc. By reference to this exhibit it appears that it has no verification.

The sole and only point made on the appeal is that the complaint is fatally defective because no verification to the petition appears on this exhibit. It is contended that section 1578 of the Code of Civil Procedure, under which the petition was filed, is substantially the same as section 1537 of the Code of Civil Procedure, authorizing an administrator to sell real property, and that in both instances a verified petition is essential to jurisdiction. (Citing Wills v. Pauly, 116 Cal. 575; Estate of Boland, 55 Cal. 315.) It is further contended that all the matters necessary to be alleged in the petition under section 1578 must be alleged in the complaint to foreclose the mortgage made upon such petition, and that although these matters appear in the petition they cannot aid the complaint because the petition does not appear to be verified. Furthermore, that the allegation in the complaint that the petition was verified should be disregarded because it is repugnant to the unverified petition which is made a part of it. (Citing Love v. Sierra Nevada etc. Co., 32 Cal. 639; Stoddard v. Treadwell, 26 Cal. 294.) And, again, that the allegation in the complaint that a verified petition for, leave to mortgage was filed is to be regarded as a statement of a conclusion of law, inasmuch as the complaint shows that the _ petition was not verified (Citing McBean v. San Bernardino, 96 Cal, 183); and that the doctrine that a defective pleading, may be cured by a default or verdict has no application, for there was here an entire absence of material allegation. (Citing Richards v. Travelers’ Ins. Co., 80 Cal. 507; Harmon v. Ashmead, 60 Cal. 442; Barron v. Frink, 30 Cal. 486.)

It is too late to question the validity of the order; no appeal was taken from it. It will he presumed that, if a verification, to the petition was essential to jurisdiction, such verification did appear upon the original as filed, for the order declares that it was made and entered upon a verified petition. We must, therefore, assume the fact to be as stated in the complaint and in the order, although the verification does not appear on" the exhibit. It was not necessary to. a good complaint, as claimed by appellants, that all the proceedings leading to the mortgage-should be set out in the complaint. It was only necessary to-set forth the mortgage in haec verba or in substance; it was not necessary to set out the petition or order; both of these exhibits may be wholly disregarded and there will remain a good complaint.

The act under which.the mortgage was authorized provides-that jurisdiction to make -the order for the mortgage “shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns.” It further provides that; “Ho irregularity in the proceedings shall impair or invalidate the same, or the mortgage given in pursuance thereof, and the mortgagor, his heirs or assigns, shall have and -possess the same rights and remedies on the mortgage as if it had been made by the decedent prior to his death.”

There is no repugnance between the complaint and the mortgage, for both refer to the petition as having been verified. It would- be an extremely technical view of the pleading and wholly unwarranted, we think, to hold in this action that the plaintiffs had by the complaint impeached the order on which they rely, jby needlessly attaching to the complaint what is manifestly an imperfect copy of the original petition—we say manifestly, because the order of the court and the mortgage signed by appellants both say it was verified. But if we must treat the petition as part of the complaint, because we find it attached to it, and they are inconsistent with each other, it did no more than introduce ambiguity and uncertainty into the complaint, which •could not be reached by a general demurrer and did not go to the jurisdiction of the court. A demurrer for ambiguity or uncertainty was necessary to reach the alleged defect in the complaint. (Palmer v. Lavigne, 104 Cal. 30, and cases there cited.)

It was said by this court in Fudickar v. East Riverside Irr. Dist, 109 Cal. 29, where no demurrer was filed: “If a cause of action be stated, though defectively, the complaint must be sustained, notwithstanding any ambiguity or uncertainty that may exist therein; and, in aid of the judgment, the complaint must now receive as favorable an interpretation as its general scope will warrant.”

There was no inconsistency between the allegation, of the complaint and the order authorizing the mortgage, and the mortgage itself, for these two exhibits are in harmony with the complaint. The allegation that the . petition was verified finds support in two exhibits, one of which, at least, to wit, the order or decree of the court, is of higher dignity than the petition because it cannot now be disputed. This may increase the ambiguity and uncertainty in the complaint, but it does not affect the question of jurisdiction. We do not feel called upon to decide whether or not the mortgage would be void if the fact was that no verified petition was filed. That question does not necessarily arise, for we think the complaint sufficiently shows that there was a verified petition filed. And in support of the judgment which found the allegations of the complaint to be true, it will be presumed on this appeal that the evidence supported the finding. There was not an entire absence of allegation, as claimed by appellants, and hence the cases referred to do not apply. (Kimball v. Richardson-Kimball Co., 111 Cal. 386.) Where no demurrer is interposed for uncertainty or ambiguity, it has been held: “If facts are stated showing the liability of the defendants, the complaint must be sustained notwithstanding they are imperfectly stated/* (Ryan v. Jacques, 103 Cal. 280.)

We have examined the cases to which we have been referred by counsel in support of their contention, but find nothing to-warrant us in accepting their view of the ease; and, therefore,, advise that the judgment be affirmed.

Searls, C., and Haynes, C., concurred.

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

McFarland, J., Temple, J., Henshaw, J. Hearing in Bank denied.