Harlan v. Smith
California Supreme Court
Appeal from the District Court of the Third Judicial District, County of Alameda. The plaintiff obtained a decree of foreclosure by default against Smith, as mortgagor, and other defendants as subsequent encumbrancers. The defendants, Gilmore and others, encumbrancers, moved the Court to open the default on an affidavit that they had a substantial defence to the action, but not excusing their failure to answer. The Court overruled the motion, and defendants appealed.
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Appeal from the District Court of the Third Judicial District, County of Alameda. The plaintiff obtained a decree of foreclosure by default against Smith, as mortgagor, and other defendants as subsequent encumbrancers. The defendants, Gilmore and others, encumbrancers, moved the Court to open the default on an affidavit that they had a substantial defence to the action, but not excusing their failure to answer. The Court overruled the motion, and defendants appealed. The decree of foreclosure directs the sheriff to execute a deed of the mortgaged premises to the purchaser at the foreclosure…
1Opinion of the Court
The opinion of the Court was delivered by Mr. Justice Terry.
Mr. Chief Justice Murray concurred.
Plaintiff instituted a suit against Smith, as mortgagor, and defendants, Gilmore, Torrey and Fargo, as subsequent encumbrancers, for the purpose of foreclosing- a mortgage on certain lands in Alameda county; process was duly served on all the defendants, and no answer having been filed within the time prescribed by law, on motion of plaintiff] and on production of the original note and mortgage a decree was entered. Afterwards defendants, Gilmore, Torrey and Fargo moved that the judgment be set…
2Cited by10 opinions
- McMillan v. RichardsCalifornia Supreme Court · 1858
- Hamilton v. HamiltonMontana Supreme Court · 1916
- Parker v. DacresSupreme Court of the United States · 1889
- Russ v. GilbertSupreme Court of Florida · 1882
- BOWEN v. SAVOYSupreme Court of Georgia · 2020
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