Estudillo

A general demurrer to the complaint was sustained, and, plaintiffs not offering to amend within the time allowed, judgment was entered for defendants. Plaintiffs appeal from the judgment. In appellants' points and authorities it is merely asserted that the complaint does state facts sufficient to constitute a cause of action, and in support of the assertion a general reference is made to eleven paragraphs of the complaint, which are designated by numbers. There is nothing more in the points that can be designated as argument, and no authorities are cited except section 694 of the Code of Civil Procedure. The complaint, with exhibits attached, occupies seventy pages of the transcript. The gist of the complaint, when seen through the mass of the matter set forth, seems to be this: That in May, 1892, appellants executed to the defendant, the Security Loan and Trust Company, a mortgage on certain described lots of land to secure certain promissory notes made by appellants to said company; that on October 22, 1898, said company commenced an action to foreclose said mortgage, and that appellants employed an attorney, W.D. Peck, to defend the action; that the attorney filed a demurrer to…

The plaintiffs, who are husband and wife, mortgaged certain lands to secure an indebtedness to the defendant Loan and Trust Company, a corporation. Under a judgment of foreclosure, entered upon their default, the mortgaged premises were sold to the corporation by its co-defendant, Keefe, acting as special commissioner under the decree. The object of the present action is to obtain a decree vacating the foreclosure sale, canceling the certificates and deeds executed and recorded in pursuance of the sale, requiring the corporation to account for moneys received by it from the plaintiffs and from others to their use, which should have been credited upon the mortgage indebtedness, and for general relief. The grounds upon which this relief is claimed are, — 1. That the foreclosure decree was fraudulently obtained for an excessive amount; and 2. That the sale of the mortgaged premises was unfairly and illegally conducted by the commissioner *Page 558 acting in collusion with the mortgagee, for the purpose, and with the effect, of discouraging competition of bidders, and thereby enabling the mortgagee to become the purchaser at a price much below the actual value of the lands. The…

I dissent, and adhere to the opinion delivered in Department affirming the judgment. [ 87 P. 24 .] I think that the case clearly comes within the rule that equity cannot be invoked where there is a remedy at law. Appellants had an ample remedy for their alleged grievance by motion under section 473 of the Code of Civil Procedure. They availed themselves of that remedy and were defeated; and they are now seeking to try all over again the matter there litigated. If their statements are true, they were the victims of the "surprise" which is made one of the grounds for relief in section 473 ; and it makes no difference that the surprise was the result of alleged fraud. Moreover, if the decision on the motion were no bar to the present action because of fraud involved, then, in my opinion, there is no *Page 567 sufficient averment in the complaint of facts constituting fraud. The mere averment that plaintiffs "procured" defendants' attorney to make the stipulation, etc., is insufficient; the procurement may have been by proper and justifiable means. The following is the opinion in Department referred to in the dissenting opinion: —