McPherson

This action was brought in the superior court of Kern County, to foreclose a mortgage. The cause was tried by the court without a jury, upon the issues tendered by the second amended answer of defendant Robinson, all the other defendants having defaulted, and resulted in a judgment of dismissal of the action in favor of Robinson. After a motion for a new trial was made and the statement therefor settled and filed, the cause was by stipulation of counsel transferred to the superior court of Santa Clara County, which court by its order granted the motion for a new trial. From that order defendant Robinson appeals.

The first trial of this case, which resulted in a judgment in favor of defendant Robinson, was had upon his original answer to the complaint, in which he admitted the making of the promissory note and the execution of the mortgage, and that he and his co-defendant, Alexan *92 der Forbes, who was the joint payee with himself in the note, indorsed, transferred, and delivered the note and mortgage to Forbes Brothers, and at the same time waived, demand, protest, and notice of the same, but denied that the plaintiff received the note or mortgage from Forbes Brothers, by…