Sutro

Plaintiff brought this action to foreclose a mortgage executed by Edgar Emanuel Sutro. The defendant, Henrietta L. B. Sutro, is the wife of said Edgar, and is interested in the property involved by reason of being a grantee of an undivided portion thereof under a conveyance executed by said Edgar subsequent to the execution of the mortgage. Edgar Emanuel Sutro defaulted, and judgment was taken against him by default. Henrietta L. B. Sutro appeared and answered, and after trial a judgment of foreclosure was entered. She moved for a new trial, and the motion was denied. She took separate appeals from the judgment and order, but both are presented to this court in one transcript. Respondent insists that the appeal from the judgment should be dismissed because the notice of appeal was never served on Edgar Emanuel Sutro, appellant's codefendant. It is sufficient to say upon this point that under section 941a and 941b of the Code of Civil Procedure enacted in 1907, such service is not required. The appeals were taken in 1908, and fully complied with said sections, the latter of which provides that the notice of appeal must be filed with the clerk of the trial court and "need not be…

The petition for transfer to the supreme court for a rehearing is denied. As Edgar Emanuel Sutro did not appeal, he is not entitled to any relief or advantage from the appeal of his codefendant, Henrietta L. B. Sutro. Hence, the order of the district court of appeal directing a modification of the judgment by striking out the amount allowed as attorney's fees is to be understood as applying in favor of Henrietta L. B. Sutro alone, and not as affecting in any way the relief given to the plaintiff against Edgar Emanuel Sutro. The effect is that if his interest in the property sells for enough to pay the debt, interest and costs, without the attorney's fee, her interest will be exonerated; her interest can be sold only for what remains of such debt, interest and costs, without the attorney's fee, after applying on such debt, interest and costs, the proceeds of his interest; and plaintiff will be entitled to a deficiency judgment against Edgar Emanuel Sutro for whatever may remain unsatisfied of the whole judgment, including the attorney's fees, after applying the proceeds of the interests of both defendants thereon in the manner stated. *Page 465