In Re Braun , 51 Cal. App. 202 ( 1921 )

The material facts in this proceeding are as follows: An action was begun in the superior court of San Diego County entitled The First National Bank of San Diego, a Corporation, Plaintiff, v. John Braun and Mrs. M. E. Braun, Defendants, to foreclose a certain chattel mortgage. After the necessary steps had been taken, a decree of foreclosure and order of sale were duly made and entered; a commissioner was appointed to make the sale, which was regularly held, and the commissioner made his report showing that the amount realized therefrom was $325; a deficiency judgment was then entered in the ordinary form for $492.79, the amount remaining due under the decree; thereafter plaintiff made affidavit that the defendant J. N. Braun had certain of the articles covered by the chattel mortgage in his possession, and that he refused to deliver them to the commissioner, and asked that an order to show cause be made directing the defendant J. N. Braun to produce said articles before the superior court of the county of San Diego; the order was issued as prayed for, the hearing of which, after continuances from time to time, was finally set for the eleventh day of October, 1920; defendant did not appear; whereupon, on application of the plaintiff, an order was made by the said superior court requiring the defendant J. N. Braun to appear in said court and show cause why he should not be punished for contempt for failure to respond to the citation. J. N. Braun is a resident of Los Angeles County and was arrested in Los Angeles County under a bench-warrant in said contempt proceeding.

[1] As authority to sustain the jurisdiction of the superior Court of San Diego County to take petitioner from the county in which he resides to another county, under the citation as herein recited, section 187 of the Code of Civil Procedure is relied upon, which reads: "When jurisdiction is, by the constitution of this code, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code."

By its own terms section 187 of the Code of Civil Procedure negatives the proposition that it can be made to apply in this case. A course of proceeding is specifically pointed out by the code. Our codes afford ample remedy for the creditor who holds a mortgage upon personal property as security for his debt. After default he may foreclose the mortgagor's equity of redemption by sale of the property as of a pledge (Civ. Code, sec. 2967), or he may foreclose the mortgage under section 726 of the Code of Civil Procedure. If the property is in the possession of the mortgagor it may be recovered by the mortgagee for the purposes of foreclosure and sale through a suit in replevin. In this case the mortgagee began foreclosure of the contract under section 726 of the Code of Civil Procedure. A judgment fixing the amount of the debt, with interest and costs, and directing that the same be paid by the mortgagor and that he make good any deficiency which might be found to exist after the sale, was rendered. Such a judgment is final and complete, because it leaves nothing to be adjudicated. Only ministerial acts remain to be done. (Morris v. Morange, 38 N.Y. 172; Baker v. Lehman, Wright's Ohio Rep. 522.) A sale took place, the commissioner made his report, and a deficiency judgment was entered which has not been vacated and precludes the claim now that the mortgaged property was not sold. The judgment being final, the defendant in the action became a judgment debtor. The jurisdiction of the court to enter a judgment in personam in the foreclosure of a mortgage is statutory, and no authority is given by the statute for the holding a sale by the commissioner after the entry of a deficiency judgment. Upon its entry the mortgagee acquired a right to proceed against the mortgagor personally. Again, the code is definite as to the remedy, and allows execution to issue against the property, generally, of the judgment debtor. It further provides a means, through supplemental proceedings, of discovering property whose location may be unknown. No opportunity is afforded to invoke the aid of section 187 of the Code of Civil Procedure.

It is contended that proceedings supplemental to execution could not be resorted to until the resources of the mortgage are first exhausted. This is a mistake. Immediately upon the entry of the deficiency judgment a right accrued to have execution issued, and upon this being returned unsatisfied, in whole or in part, to proceed under section 714 of the Code of Civil Procedure. However, this section expressly provides: "But no judgment debtor must be required to attend before a judge or referee out of the county in which he resides, or in which he has a place of business." The petitioner is therefore entitled to be discharged, and it is so ordered.