Emeric v. Tams , 6 Cal. 155 ( 1856 )

The opinion of the Court was delivered by Justice Terry.

Mr. Chief Justice Murray concurred.

This was an action to foreclose a mortgage on real property.

The first point made by appellant is, that the Court erred in overruling the demurrer to the complaint, because it contained no sufficient description of the land. The complaint refers to the mortgage (a copy of which is attached) which contains a sufficient description of the premises for the purposes of the suit. The action was not for the recovery of lands, and, therefore, not governed by the fifty-eighth section of our Practice Act. •

The second point, that the Court erred in ordering a reference, without the consent of defendant, is equally without foundation. The defendant having failed to answer within the time allowed by the Court in overruling the demurrer, a default was entered, and the Court, in strict conformity with the one hundred and fiftieth section of the Practice Act, ordered a reference for the purpose of ascertaining the amount due the plaintiff by defendant.

The third point was decided by this Court in the case of Guy v. Franklin, delivered at the October Term, 1855. The fourth point is not sustained by the record.

Upon the whole, we are satisfied that this must be treated as a delay case. Judgment affirmed with ten per cent damages and costs.