Ramsbottom

Action to foreclose a mortgage dated March 5, 1894, made by Bailey to Bamsbottom, to secure promissory notes of mortgagor to mortgagee. Goodwin is made a party defendant as a subsequent encumbrancer. The complaint al *260 leges that the mortgaged premises are the partnership property of the firm of Bailey & Carpenter; that Carpenter was dead at the time of the execution of note and mortgage; that Bailey contracted the indebtedness and made the notes and mortgage in his capacity of surviving member of the firm. The answer of Goodwin alleges that the notes and mortgage were executed by Bailey individually and for his own use and benefit, and not as surviving partner. The answer then sets up a judgment recovered on the twenty-third day of May, 1895, in the superior court of San Joaquin county, in favor of Goodwin against Bailey individually and as surviving partner, whereby it was adjudged that the amount of the judgment be paid out of the partnership assets, and in which action there was filed with the clerk a copy of an order made by the court requiring Oscar F. Atwood, previously appointed receiver of the partnership, to be made a party to the action, with proof of service upon…