Legal Opinion
Ryan v. Holliday
California Supreme Court
Decided December 10, 1895No. L. A. No. 80PublishedCited by 20 opinions
Appeal from a judgment of the Superior Court of Riverside County. J. S. Hoyes, Judge. The facts are stated in the opinion of the court, with the exception of the alleged defect in the summons, in respect of which the facts appear in the last syllabus.
1Opinion of the CourtVan Fleet, J.
The judgment in this case must be reversed for want of any averment that the note secured by the mortgage sought to be foreclosed has not been paid. The only allegation in this regard is:
“That the interest on said note and mortgage has been paid in full up to the eleventh day of September, 1894, and there is now due and owing to the plaintiff the sum of twelve hundred dollars ($1,200), with interest thereon at the rate of twelve per cent per annum from the eleventh day of September, 1894.”
This is not the equivalent of an averment of nonpayment. The language, “ There is now due,” etc., is but…
2Cases cited4 opinions
- Frisch v. CalerCalifornia Supreme Court · 1862
- Bewick v. MuirCalifornia Supreme Court · 1890
- Scroufe v. ClayCalifornia Supreme Court · 1886
- Barney v. VigoreauxCalifornia Supreme Court · 1892
3Cited by20 opinions
- Wilson v. SharpCalifornia Supreme Court · 1954
- Flood v. TempletonCalifornia Supreme Court · 1905
- Prichard v. KimballCalifornia Supreme Court · 1923
- Arizona Eastern Railroad v. Globe Hardware Co.Arizona Supreme Court · 1913
- Krieger v. FeenyCalifornia Court of Appeal · 1910
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