(107 Cal. 33) RANDALL v. DUFF et al. (No. 15,718.) 1 (Supreme Court of California. April 4, 1895.) RATE OF INTEREST-APPEAL. 1. A direction by the appellate court to allow interest to plaintiff, who was entitled, as purchaser under an ineffectual foreclosure of mortgages, to receive all that was equitably due mortgagees, entitles him to interest at legal, and not at conventional, rates. 2. When there is a question whether or not the lower court has entered the judgment directed on remand, an appeal lies. Department 2. Appeal from superior court, Humboldt county; G. W. Hunter, Judge. Action by A. W. Randall against Julia R. Duff and others to quiet title. From a judgment amending a decree, plaintiff appeals. Affirmed. S. M. Buck and W. C. Belcher, for appellant. W. L. Duff, H. S. Foote, and L. D. McKissick, for respondents. the light of the general tenor of the opinion and of the above language in particular, entitled appellant to interest on the amount of the mortgage debt at conventional rates rather than at the legal rate. The superior court, however, declined to grant the relief, and amended its decree by computing interest on the credits allowed appellant down to March 1, 1892, at legal rates. From the judgment so entered this appeal was taken. I do not think the judgment of the court is ambiguous, and therefore it needs no interpretation. Nor do I think the opinion must necessarily receive the construction placed upon it by appellant. Subrogation is allowed by courts of equity to secure justice. Ordinarily, it takes place when one has paid a debt which some one else ought to have paid. In such cases, sometimes, the person so paying succeeds to the securities which the original creditor held for his debt. This is allowed when justice requires it, and the securities which a person so obtains are held by him merely to insure reimbursement. He will not be permitted to make a speculation out of it. Often a lien is thus kept alive which, but for the purpose of enabling the court to do equity, would be considered released. Obviously, a court of equity will not allow a resort to such securities beyond what is necessary to effectuate the purpose. It is not clear that plaintiff was entitled to recover as indemnity the principal and interest on the mortgage, and evidently no such question was discussed or decided in the opinion. It is true, undoubt TEMPLE, J. This case has been here twice before. 79 Cal. 115, 19 Pac. 532, and 21 Pac. 610; 101 Cal. 82, 35 Pac. 440. For a fuller statement of facts, reference may be had to those appeals. Plaintiff was appellant in the appeal reported in 101 Cal. and 35 Pac. He then complained of the judgment in various respects, among others, that the trial court allowed interest only up to March 15, 1885, the date of the filing of the cross complaint, because that court thought the cross complaint contained a sufficient tender to stop interest; this court thought the offer or tender in the cross bill insufficient for that purpose, and that inter-edly, that the plaintiff was entitled to recover est should have been allowed on the amounts credited to appellant down to March 1, 1892, at which time the whole amount was compensated or paid by damages allowed to the defendants for plaintiff's occupation of the mortgaged premises. The judgment of this court was: "Wherefore the judgment of the superior court is affirmed in all respects, except as to this matter of interest, as to which the judgment is reversed; and the cause is remanded to the superior court, with directions to amend its decree by allowing interest to the plaintiff down to March 1, 1892, and by reducing the judgment against him correspondingly." Interest had been allowed in the decree then appealed from at legal rates, but the court held that, as to a portion of the moneys with which plaintiff was credited in the accounting, he was entitled to be subrogated to the rights of the mortgagees under an ineffectual foreclosure of whose mortgages he had purchased, and by so purchasing had paid off the mortgages. In stating the subrogation, the court used the following language: "But plaintiff was also successor to the mortgagees, and entitled, as against the defendants, to receive all that was equitably due on the mortgages, including interest on the amount secured up to the date of payment or tender." When the remittitur reached the lower court, counsel for appellant claimed that the judgment of this court, interpreted in 1 Rehearing denied. the entire sum due on the mortgage for principal and interest (if the attempted foreclosure was wholly void) so far as this was necessary to protect him. I cannot see why indemnity in his case should go beyond reimbursement with legal interest. His equity against the defendants is based upon the fact that he was misled by the apparent authority vested by defendants in an unfaithful agent, and thereby induced to purchase at the foreclosure sale. Defendants were permitted to recover upon reimbursing plaintiff for the money so paid. Perhaps, under such circumstances, it was not necessary for plaintiff's se curity to resort to the doctrine of subrogation. But the matter need not be pursued further. The fact that none of these matters are noticed in the opinion, and that the judgment of this court seems unambiguous, demonstrates that the construction contended for by appellant cannot be maintained. A motion was made to dismiss the appeal, and was submitted when the case was argued on the merits. It is contended that the judgment entered in the court below was in effect the judgment of this court, and that no appeal can be taken from 't. For some purposes the judgment may be deemed on a par with the judgment which might have been entered here. But great injustice might be done if it were held that such a judgment cannot be appealed from. Serious doubts may arise · as to whether the Judgment entered was the judgment ordered; and such a judgment is as plainly within the language allowing appeals as any other. I think there can be no doubt of the right to appeal. Nor do I think the appeal frivolous. The judgment is affirmed. I concur: HENSHAW, J. MCFARLAND, J. I concur in the judgment and in the opinion of Mr. Justice TEMPLE. Of course, when the lower court enters the judgment directed by this court, there is an end of the litigation; but, when there is a question whether or not the lower court has entered the judgment directed, then an appeal lies. If the appeal be frivolous, and not taken bona fide, the remedy is the imposition of heavy damages. (107 Cal. 49) STEEN. HENDY et al. (No. 15,644.) 1 (Supreme Court of California. April 4, 1895.) ACTION AGAINST EXECUTOR-PRESENTATION OF CLAIM. Failure of the plaintiff, in an action against an executer, to prove that his claim against decedent had been presented to such executor, the latter having duly objected and excepted to the proceeding on that ground, warrants a reversal of the judgment rendered against the executor for such claim. In bank. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge. Action by E. T. Steen, substituted for J. W. Falkner, against Joshua Hendy and the Joshua Hendy Machine Works, a corporation. The defendant having died after the action was begun, it was continued against his executors. From a judgment for plaintiff, the executors appeal. Reversed. Boyd, Fifield & Hoburg, W. H. H. Hart, and Nowlin & Fassett, for appellants. Wm. H. Jordan, for respondent. PER CURIAM. This appeal is from the Judgment, with a bill of exceptions. The action was brought to obtain a dissolution of an alleged partnership, to have an account taken, and for other relief. It was commenced March 11, 1876. At the first trial plaintiff recovered judgment, and defendants appealed, and that appeal was disposed of here, October, 1889. 80 Cal. 636, 22 Pac. 401. The facts of the case appear in the opinion then rendered. It was found that the partnership if the relations between the parties could be so called-had ended before the suit was brought, leaving in Hendy's hands property in which Steen had a contingent interest, and which Hendy continued to sell from time to time after this suit was begun. By stipulation, however, it was found that Hendy had in his hands something more than $10,000 which belonged to Steen. The question left to be determined was what interest ar what share of the profits of Hendy's busi1 For motion to modify judgment, see 40 Pac. 386. ness Steen was entitled to. After the remittitur was filed from this court, Steen amended his complaint, made for the first time the corporation a defendant, and claimed that Hendy had actually realized a large amount of money from the use of the trust funds, which he (Steen) was entitled to recover. The corporation was created September 29, 1882, and it was made a party to the suit November 26, 1889. The supplemental and amended complaint, by which the corporation was brought in, charged, in effect, that Hendy owned all the stock of the corporation, and that it was organized to carry on Hendy's business, to hide plaintiff's property, and to defraud plaintiff. A money judgment was demanded against both defendants. Soon after Hendy paid the amount found due, exclusive of interest, and the cause was referred to a referee to try, with directions to report findings and a judgment. While the trial was in progress, October 21, 1891, Hendy died. The record does not show when letters of administration were issued in the estate of Hendy, but it appears by order made August 10, 1892, that the death of Hendy was suggested by plaintiff, and it was ordered that the case be continued in the names of the executors; and the bill of exceptions recites that "at the first session after his death and said substitution, to wit, on the 19th day of November, 1891, said defendants objected to further proceeding with the trial, or the taking of any further testimony in the case, upon the ground that the claim upon which the action is based has not been presented for allowance to the executors and executrix of Joshua Hendy, deceased; but the referee, notwithstanding such objection, proceeded with said trial and the taking of testimony In the case, to all of which the defendants duly excepted, and the said trial and taking of testimony was then proceeded with by said referee. The trial was concluded, and the case argued and submitted to the referee for decision in February, 1892, and the said referee rendered his decision and filed his findings of fact and conclusions of law on the 5th day of November, 1892, with the clerk of the court, and judgment and decree were made thereon on December 30, 1892. There was no evidence that the claim upon which this action was based was ever presented to the executors and executrix of the estate of Joshua Hendy, deceased, and no claim whatever was ever presented to them, or either of them. And the defendants, and each of them, excepted, and now excepts, to the decision, on the ground that it is against law in the following particulars: • (3) The decision is against law in giving judgment against defendants, to wit, the executors and executrix of the estate of Joshua Hendy, deceased, inasmuch as no claim was presented to them." This appeal was not taken with. in 60 days after the rendition of judgment, and it is contended by the respondent that this objection to the judgment cannot now be entertained; that the point is, really, that the judgment is not sustained by the evidence, and if such a point could be made at all it cannot be raised on this appeal, because It was not taken within 60 days after the rendition of the judgment. It is plain that this case is not within the rule in section 939, Code Civ. Proc., where it is by implication provided that an exception to the decision or verdict, that it is not supported by the evidence, may be reviewed on an appeal from the judgment if the appeal be taken within 60 days after the rendition of judgment. The Code provides for no exception to a judgment on the ground that it is not sustained by the evidence. Mazkewitz v. Pimentel, 83 Cal. 450, 23 Pac. 527. Nor could such a point be urged on a motion for a new trial. Exceptions of that character are directed to the findings of fact. In this case there was no finding upon the subject. Nor does the exception appear to be aimed at a finding. The exception was to the entry of judgment against the executors and executrix on the ground that no claim had been presented to them. Section 1502, Code Civ. Proc., provides that, if an action is pending against a decedent at the time of his death, it must be presented to the executor or administrator, as in other cases; "and no recovery shall be had in the action unless proof be made of the presentations required." Regularly, in such cases, a supplemental complaint should be filed, alleging the death and due presentation of the claim. There are cases, however, which seem to hold, at least by implication, that a judgment would not be void though these facts were neither alleged nor proven. Such a judgment would be erroneous only, and would not be reversed even on appeal, unless the objection was first made in the trial court. In Bank v. Howland, 42 Cal. 129, the objection was made for the first time on the motion for a new trial. The court said: "It was too late at that time for the plaintiff to have supplied the requisite proof. The objection must therefore be disregarded." In Drake v. Foster, 52 Cal. 225, the objection was made for the first time in this court, and it was held that it was too late. In Derby v. Jackman, 89 Cal. 1, 26 Pac. 610, the supplemental complaint averred the due presentation of the claim. This was denied in the answer, and, as it was held, was the only good denial in the answer. Judgment was, on motion, entered for plaintiff on the pleadings. This court held the judgment erroneous, and said: "The effect of that section (1502) plainly is that, although due presentation of the claim be not denied, still it must be proven." The effect of these cases is that proof of the presentation of the claim is not a fact essential to the validity of the judg ment, where no issue has been made upon that question, but that the failure to make the proof is ground for reversal, when objection is made in the trial court, and the exception is properly preserved. It must be held that the exception here was made in due time, and has been properly brought here. Respondent's counsel suggests that Hendy died October 21, 1891, and the objection to proceeding because the claim had not been presented was first made November 19, 1891, and the record fails to show that at that time letters testamentary had been issued. If that be so, so much the worse for respondent. It shows that he had timely warning, and yet failed to preserve his rights. The referee should not have proceeded at all with the case until letters had been issued and the representatives brought in. If he did so, that would alone constitute ground for reversal. Litigants must know, at their peril, of the death of an adversary. Negligence cannot be attributed to the dead, and, although the heirs may sometimes lose by failure to have administration properly made, those having claims against the estate acquire no rights by the delay except the extension of the time to collect their demands. Undoubtedly re spondent had the right to present his claim to the representatives of Hendy at any time within the period allowed by law for the presentation of claims, but he was not en titled to recover a judgment which will bind the estate of Hendy until such presentation had been made. That the claim of plaintiff was one which would require presentation respondent does not deny. The matter was fully considered by this court in Lathrop v. Bampton, 31 Cal. 17, and in Rowland v. Mad den, 72 Cal. 17, 12 Pac. 226, 870. This resul: certainly seems a great hardship in this case but we are powerless to save the plaintiff from the consequence of his neglect. The judgment is reversed. BEATTY, C. J., and HARRISON, J., not participating. (107 Cal. 27. HORGAN. ZANETTA. (No. 15,838.) ↑ (Supreme Court of California. April 4, 1895., MORTGAGE ON GROWING CROPS-ESTOPPEL. 1. The removal of a mortgaged crop from the land of the mortgagor, on which it was grown, is prima facie an extinguishment of the mortgage lien, section 2972, Civ. Code, a amended in 1878, continuing suca lien only se long as the crop remains on the land of the mortgagor. 2. A creditor of a lessee who, without knowledge of the fact that the lessor had a mortgage on such lessee's crop, induced the lessee, without false representations, to remove his grain to the creditor's farm to be threshed, and afterwards attached it, was not estopped to deny the continuance of the mortgagor's lien on the crop after it had been removed from the land on which it was grown. Department 2. Appeal from superior court, San Benito county; James F. Breen, Judge. Action by T. J. Horgan against E. Zanetta Judgment for plaintiff, and defendant ap peals. Reversed. 1 Rehearing denied. In 1893, James MurMCFARLAND, J. phy was the lessee of a parcel of inclosed land called "Field No. 1." D. W. Cole owned adjoining land, called "Field No. 2." Murphy had executed a chattel mortgage of the crop of grain growing on his said leased land to the plaintiff, Horgan, to secure $800. In July, Murphy commenced harvesting the crop and hauling it away from the land on which it had grown onto the said land of Cole, and finished doing so in the early part of August. On September 1st, Cole brought suit against Murphy, and attached the grain. Jensen and Lauritzen also brought suit against Murphy, and upon either the 1st or 2d of September attempted to levy an attachment on said grain, but it is contended that for certain reasons this last attachment was invalid. However, Cole recovered judgment in his case against Murphy on September 7th, and Jensen and Lauritzen recovered judgment on September Sth; and executions in both cases were immediately issued and levied on the grain,-the one on September 7th, and the other on September 8th, and the grain was sold to satisfy these executions by the defendant, Zanetta, who was constable, and who justifies under these attachments and executions. On September 15th plaintiff served a notice upon defendant, claiming "the possession of or a lien" upon the grain by virtue of the said chattel mortgage. Defendant proceeded and sold the grain under the executions without regarding the alleged mortgage lien; and thereafter plaintiff commenced this action to recover the $800 secured by said mortgage, with interest and damages. The court rendered judgment for plaintiff for $535.07, being the value of the grain as found by the court, together with damages, attorney's fees, and costs. Defendant appeals from the judgment, and from an order denying a new trial. Section 2972 of the Civil Code, as amended in 1878, provides that the lien of a mortgage on a growing crop continues "as long as the same remains on the land of the mortgagor." Prior to 1878 the lien continued only until the crop was severed from the land. In the case at bar the crop had been removed from the land of the mortgagor at the time the attachments and executions were levied on it by the appellant. Therefore, the lien of the mortgage had prima facie been extinguished. It, therefore, devolved upon respondent to remove this prima facie case by showing that the case at bar This he is an exception to the general rule. attempted to do by evidence of facts which, he contends, estop appellant from denying The facts subthe continuance of the lien. stantially are these: The land on which the crop was raised was rough and hilly, and 23 not suited to the placing of a machine for com menced harvesting, there were conversations I He further This witness (Rowe), in an affidavit made on motion for a new trial, specifically states that Cole did not say that he knew of the mortgage before the removal of the grain onto his land, and that the conversation was on the second Saturday before September 4th; but, leaving that out of view, his testimony as given at the trial is not at all to the point that Cole knew of the mortgage at the time he talked with That was Murphy about moving the grain. in July, and the conversation between Rowe and Cole-putting it at the very earliest period-was the 19th of August, which was some time after all the grain had been removed by Murphy to Cole's land, and long after Murphy had commenced to remove it. Indeed, the conversation with Rowe is strong to the point that Cole had then just discovered the existence of the mortgage, and was going to ask his lawyer if he could not hold the grain for the rent notwithstanding the mortgage. We must therefore take the facts to be that Cole did not know of the mortgage until after the grain had been removed by Murphy to his (Cole's) land, but that he did know of the mortgage at the time he sued out the attachment. It does not appear that the mortgagee used any care or diligence in looking after the crop when harvested, or paid any attention to the grain until after it had been attached, which was about a month and a half after Murphy commenced to harvest it, and nearly a month after he had removed it from his land. We think that, under these facts, Cole was not estopped from denying the continuance of the mortgage lien, and that, at the time of the attachment, the said lien had been extinguished by the removal of the grain from the land of the mortgagee on which it was raised. Goodyear v. Williston, 42 Cal. 11; Waterman v. Green, 59 Cal. 142. The cases cited by respondent are cases where there was a tortious removal of the crop from the land on which it grew by third persons, or where the mortgagor had stored the crop at a warehouse in the name of the mortgagee at the latter's request. We see no ground upon which Cole was estopped from asserting his right as attaching creditor, or from denying the continuance of the lien. He made no false representation. The person to whom the representation was made knew the fact represented, and the respondent, who is the party asserting the estoppel, was not influenced by the representation to change his position, or to do any act to his prejudice. The case arises out of a mere contest between hostile creditors of Murphy, each standing upon his legal rights. It is true that, when Cole attached, he knew that there had been a mortgage on the crop; but he also knew that the lien had been extinguished by the removal of the crop from the land of the mortgagor, and he was not bound to look after the former rights of the mortgagee who had lost them by his own carelessness. These views make it unnecessary to consider appellant's justification under the execution of Jensen and Lauritzen, against whom no claim of estoppel is made. The judgment and order denying the motion for a new trial are reversed. We concur: HENSHAW, J.; TEMPLE, J. (107 Cal. 42) EICHHOFF v. EICHHOFF et al. (No. 15,957.) (Supreme Court of California. April 4, 1895.) BILL TO ANNUL JUDGMENT-BURDE OF PROOF. 1. In an action to annul a judgment for want of jurisdiction, where the record shows summons issued. but fails to show that defendant was served or appeared in the action, the plaintiff has the burden of showing affirmatively the facts constituting want of jurisdiction. 2. An action brought in equity to annul a judgment at law, though not collateral, is an indirect attack upon the judgment. Department 2. Appeal from superior court, Marin county; F. M. Angellotti, Judge. Action by Melocene W. Eichhoff, by her guardian ad litem, against Magdalena Eichhoff and others, to annul a judgment of diFrom a judgment for defendants, plaintiff appeals. Affirmed. vorce. J. J. Paulsell and Kile & Plummer, for appellant. Jas. H. & J. E. Budd and Nicol & Orr, for respondents. At the trial, TEMPLE, J. This action was brought to set aside a judgment and decree rendered by the superior court of Marin county in 1882, annulling the marriage between Gustave Eichhoff and Melocene Eichhoff. The complaint shows as a cause of action that in the suit for the annulment of the marriage this plaintiff (defendant in that action) was not served with summons, had no notice of the suit, and never appeared therein, and that said judgment was procured by the fraudulent prac tices of said Gustave Eichhoff. the plaintiff, to sustain her allegations, put in evidence the judgment roll in the action for the annulment of the marriage, the petition for the appointment of a guardian ad litem, and the order appointing the guardian ad litem, and rested. The defendant put in no evidence, and the court thereupon rendered judgment for defendant, and the plaintiff appeals from the judgment. The appeal was taken within 60 days after the rendition of judgment. The judgment roll put in evidence shows that a summons was issued, but there was no proof of service. There was no memorandum that the default of the defendant had been entered, as required by the Code. There was no appearance for the defendant in the case by answer or demurrer. There is no recital in the judgment to the effect that summons had been served; but it is stated that a guardian ad litem had been duly appointed for the defendant, and that such guardian appeared in open court, and consented that the action be tried. Neither in the petition for the appointment of a guardian ad litem nor in the order appointing the guardian is there a recital to the effect that the summons had been served on the defendant. The only question presented on this appeal is whether, under these circumstances, the burden was cast on the plaintiff of proving that summons had not in fact been served on the defendant in the former action, or whether the defendant had the laboring oar. The question as to the validity of this judgment was once before considered by this court. In re Eichhoff's Estate, 101 Cal. 600, 36 Pac. 11. There the attack upon the judgment was collateral. It was held by this court that |