Schwerin

This is an appeal by defendant L. K. Shostak from a judgment rendered on a promissory note in favor of plaintiffs Emil and Lotte Schwerin.

The note sued upon was in the face amount of $1,249.90, and the complaint was originally filed in municipal court. Defendant answered and cross-complained for declaratory relief, alleging that the note was executed concurrently with a second note, and that both notes were given without consideration and were intended to be effective only if eosigned by one Stephen J. Reuben. In addition, defendant alleged that if there was any obligation owing from him to plaintiffs, the same was secured by a deed of trust on real property owned by Reuben, and plaintiffs were therefore limited to one form of action (exhaustion of the security), under Code of Civil Procedure, section 726. Defendant prayed for a judicial declaration that both notes were null and void, and that plaintiffs were limited to one form of action for the recovery of the obligation secured by the deed of trust. Upon the filing of this cross-complaint for declaratory relief, the municipal court ordered the action transferred to the superior court.

At the trial, it was developed that…