May v. Hatcher

McFARLAND, J. This is an action to foreclose a mortgage executed to plaintiff by the defendant Michael Ryan. Other persons were made defendants as claiming some interest in the property. Judgment of foreclosure was entered March 1, 1897, and the mortgaged premises were sold by a commissioner appointed for that purpose on June 7, 1897, to plaintiff. On December 4, 1897—nine months after the entry of the judgment, and three days less than six months after the sale —Sewell Hatcher, claiming to have purchased the interest of the mortgagor and his wife about five months after the sale, moved the court to vacate the judgment, and also to vacate the sale. The court denied the motions, and from the order denying them Hatcher appeals. We really observe nothing in the record which would entitle the appellant to have the judgment vacated, even if the motion had been made in time; but the motion was too late, for a judgment, unless void on its face, cannot be vacated on a mere motion unless it be made at least within six months after the entry of the judgment. In the cas'e at bar, the judgment was clearly not void on its face. The main contentions of appellant on this point are: 'l. That the judgment is void because there were no findings; and 2. Because after a certain amendment to the complaint had been served on the defendant J. H. Ljmdon, who is alleged to have been the assignee in the insolvency of the defendant Michael Kane, and on the defendant Mary Kane, who is alleged to have been a subsequent judgment creditor of Michael Kan'e, default was entered against them by the clerk one day too soon. Ljmdon and Kane had been brought into court by service of the summons and original complaint. As to the first contention, as a matter of fact there are sufficient findings, although they are irregularly put in the judgment itself instead of being in a separate document called “findings”; but, if they cannot be considered as findings, it is sufficient to say: 1. That the judgment record does not show that findings were *629 not waived, and, therefore, under any view the judgment would not he void on its face for the reason assigned; and 2. The absence of findings would not make the judgment void, but at most would only be error reviewable on appeal. 2. Appellant is not concerned with the supposed rights of Lyndon and Kane; they did not ask to have the default set aside, nor did they make any effort to be allowed to answer the amendment; and, even as to them, what happened after the service of the summons and the original complaint, at most, "“rendered the judgment erroneous simply, not void.” (In re Newman, 75 Cal. 220. 1 ) The court did not err in denying the motion to vacate the sale. The point mostly argued by appellant for the reversal of this order is that the commissioner was not sworn to perform his duties. We need not discuss the question here whether his failure to be sworn, if such failure had been shown, would have vitiated the sale, for there was ample proof that he was sworn. Appellant’s position is that the facts that no written affidavit- of the commissioner was on file in the clerk’s office, and that the clerk’s register of actions did not show that such affidavit had been filed, are conclusive proof that no oath was taken, and that no other evidence was admissible on the subject. But this position is not tenable. The statutory provisions touching the matter is merely that "'The commissioner, before entering upon his duties, must be sworn to perform them faithfully.” (Code Civ. Proc., sec. 729.) There is no provision that he must make a written affidavit, or that an affidavit must be filed anywhere; and there is abundant evidence in the record, not only that he was sworn, but that he made a written affidavit. The fact that the commissioner made an invalid sale on May 10, 1897, which the court on plaintiff’s motion set aside for insufficiency of notice, etc., did not invalidate the sale afterward on June 7th. Hor was the latter sale vitiated by the fact that there was one publication of a notice of sale having the date June 16th, instead of June 7th—there being a sufficient publication after it was amended. Something is said in the appellant’s brief about inadequacy'of price; but that is *630 not one of the grounds of the- motion; the evidence introduced on the subject is exceedingly meager, and simple inadequacy of price, even if shown, is not itself sufficient ground to sustain a motion like the one here in question. There are no other points in appellant’s briefs which call for special notice. The notice of appeal from the orders contains also a notice of appeal from the judgment, but the transcript does not contain the record of that appeal, and, as we understand counsel, that appeal is not before us. Therefore, this decision will not he construed as in any way affecting the appeal from the judgment. The orders appealed from are affirmed. Temple, J., and Henshaw, J., concurred. Footnotes [1] 7 Am. St. Rep. 146.