Opinion
Hearing Granted by Supreme Court Dec. 16, 1935.
Appeal from Superior Court, Los Angeles County; Robert W. Kenny, Judge.
Suit by the Bankers Life Company against J. R. Canterbury, Jr., and another. Judgment for defendants, and plaintiff appeals.
Reversed, with directions.
COUNSEL
Norman T. Mason, of Los Angeles, for appellant.
W. C. Shelton and George W. Burch, Jr., both of Los Angeles, for respondents.
OPINION
McCOMB, Justice pro tem.
This is an appeal by plaintiff from a judgment in favor of defendant after the trial court sustained a demurrer to plaintiff’s amended complaint without leave to amend.
The amended complaint alleged that a note and trust deed were executed by the defendant October 20, 1929, the note maturing between August 22, 1933, and September 1, 1935; the sale of the property secured by the trust deed on September 18, 1934; and that notice of breach and election to sell the property secured by the trust deed was recorded only three months before the date of sale. The complaint prayed for a deficiency judgment.
The sole question presented for determination on this appeal is:
Does the requirement that no deficiency judgment shall be rendered upon any obligation secured by a deed of trust with power of sale, following the exercise of such power of sale, unless it shall affirmatively appear that the notice of breach and election to sell, pursuant to which such sale was held, was recorded at least one year before the date of such sale, apply to a trust deed and promissory note executed prior to the effective date (August 22, 1933) of section 2924½ of the Civil Code?
We are of the opinion that section 2924½ of the Civil Code does not apply to notes or trust deeds executed prior to the effective date of the act. To hold otherwise would impair the obligation of a contract and render this section unconstitutional (Const. U.S. art. 1, § 10, ch. 1; Const. Cal. art. 1, § 16).
This same question was before Division 1 of this court on June 3, 1935, in the case of Brown v. Ferdon, 46 P.2d 218. Mr. Justice Edmonds in a well-reasoned opinion arrived at the same conclusion relative to the retroactive effect of section 2924½ of the Civil Code.
We agree with Mr. Justice McReynolds’ statement: "In my view multiplied judicial utterances have become a menace to orderly administration of the law. Much would be gained if three-fourths of those published in the last twenty years were utterly destroyed. Thousands of barren dissertations have brought confusion, and often contempt." Therefore we base our decision in the instant case upon the reasons set forth in Brown v. Ferdon, supra.
We are not unmindful that the Supreme Court has granted a hearing in Brown v. Ferdon, supra; however, we are of the opinion that no single act tends to destroy public confidence in courts of justice more readily than delay in the disposition of cases pending before them. Such procrastination causes the average citizen to believe that the judges are either indolent or unlearned in the law; hence unable to reach a decision. It has been the recent policy of this court to dispose of appeals presented to it promptly. Koeberle v. Hotchkiss, (Cal.App.) 48 P.2d 104. Accordingly, being satisfied with the reasoning in Brown v. Ferdon, supra, we are deciding the case before this court prior to the Supreme Court’s final ruling on the question involved.
For the foregoing reasons, the judgment is reversed, with directions to the trial court to overrule the demurrer and grant defendant 10 days within which to serve and file an answer to plaintiff’s amended complaint.
It is so ordered.
We concur: CRAIL, P. J.; WOOD, J.