Thornton

Upon a former appeal in this action (Hibernia etc. Soc. v. Thornton, 109 Cal. 427 ; 50 Am. St. *482 Rep. 52 ), the judgment was reversed upon the ground that it appeared from the findings that the promissory note upon which the action was brought had been, at the time of its execution, secured by a mortgage upon real property, and that by reason of the provisions in section 726 of the Code of Civil Procedure, the makers were not liable to an action upon the note independent of a suit to foreclose the mortgage. When the cause again came on for trial in the superior court, the defendant moved for judgment upon the pleadings, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The court granted the motion, and rendered judgment in favor of the defendant, reciting therein: “It appearing from said complaint that the promissory note set forth in the complaint is secured by mortgage, and that said complaint does not ask for or pray that the mortgaged property be sold and the proceeds applied to the costs of said action, expenses of sale, and to the payment of the promissory note sued upon in this action, as provided by section 726 of the…