GRAY, C.

This action was brought by plaintiff against S. Webber Parker to foreclose a mortgage given by the latter to plaintiff to secure three notes for the principal sum of sixteen thousand dollars each. The property affected by the mortgage had been sold by the plaintiff to said S. Webber Parker, and said notes and mortgage represented a part of the purchase price thereof. Frank L. Parker, Frank Olcese, the Hornitos Gold Mining Company (a corporation), and W.E. Holbrook were made defendants in the action, and the complaint alleges as to these parties that they "have, or claim to have, some interest in or lien on the property in question; and that said interest or lien is subsequent to and subject to the plaintiff's said mortgage." Judgment by default went against all the defendants except the appellant. The appellant answered the complaint, denying that his lien was subsequent to plaintiff's, and in a cross-complaint set up a mortgage on the same property described in the complaint, of date prior to plaintiff's mortgage, executed by plaintiff and defendant Olcese to one S. Nickelsburg, to secure the payment of a note between the same parties for the principal sum of $6,117.18, which said note and mortgage was alleged to have been duly assigned to S. Webber Parker, and thereafter by the latter to the appellant, Frank L. Parker. In this cross-complaint appellant prayed that the property be sold and the first proceeds of the sale applied to the satisfaction of cross-complainant's note, mortgage, costs, and counsel fee of one thousand dollars. The plaintiff answered the cross-complaint, and, in addition to denials of the allegations thereof, pleaded payment of the cross-complainant's note and mortgage, and that said payment was accomplished by an agreement between plaintiff and S. Webber Parker, to the effect that the extinguishment of said note and mortgage was a part of the consideration for the said conveyance of the property in question by plaintiff to said S. Webber Parker. In his answer the plaintiff prayed that the court decree that the note and mortgage mentioned in the cross-complaint are fully paid, satisfied, and discharged, and that the same are no longer liens upon the lands or any part thereof described in plaintiff's complaint. On the issues thus framed the case was, on September 17, 1898, set for trial with the consent of appellant for the fifteenth day of October, 1898, when it was tried before the court without a jury, and judgment given in accordance with the prayer of plaintiff's answer to the cross-complaint. When the case was called for trial the appellant moved for a continuance on the ground that the necessary parties to his cross-complaint — Frank Olcese and the corporation defendant — had not then been served with process.

1. The order of the court denying said motion is assigned as error, and constitutes the first ground urged for reversal of the judgment and order denying appellant a new trial. We think the ground assigned for this motion was not well taken, for the reason that it was not necessary for appellant to serve process on his co-defendants. They were parties to the action, and had been duly served with summons by plaintiff, and the court had jurisdiction of their persons in the action, and all that was necessary to make them parties to the cross-complaint was service on them of such cross-complaint in the manner provided by law. No summons was necessary. (Code Civ. Proc., sec 442.) The appellant seems to have had plenty of time and opportunity to serve his cross-complaint if he desired to do so, and he gave the trial court no excuse for his delay in the matter and made no showing of diligence. The court was therefore warranted in refusing the continuance. There can be no question that the court had jurisdiction to determine the issues made by the cross-complaint and respondent's answer thereto in the absence of service on the other defendants, so far at least as the rights of the parties to this appeal were concerned. (Van Loben Sels v. Bunnell, 131 Cal. 489. )

2. Nor do we think the appellant had the right to dismiss his cross-complaint, as he attempted to do, against the objection of respondent, who had answered, showing that he was entitled to affirmative relief, and praying that the same be granted as to the mortgage and note set up in said cross-complaint. While the appellant's rights under his alleged prior mortgage were perhaps not matters necessary to be litigated in the foreclosure of respondent's mortgage, and perhaps appellant could not have been compelled in the first instance to submit those rights to judicial determination in this action, yet it appears that he did voluntarily submit them to the jurisdiction of the court in filing his cross-complaint, and the respondent having answered the same, the alleged prior lien was then a proper subject to be disposed of in the action. (Van Loben Sels v. Bunnell, 131 Cal. 489; Beronio v. Ventura County Lumber Co., 129 Cal. 232.) Being properly before the court with his cause of action, the cross-complainant was in the same position with reference to the right to dismiss as if he were an original plaintiff, and could not under the circumstances dismiss without the consent of the party who had prayed affirmative relief as to the matters contained in the cross-complaint. (Code Civ. Proc., sec. 581; Islais etc. Water Co. v. Allen, 132 Cal. 432.)

3. Appellant's remaining contention is, that the evidence failed to show that his note and mortgage had been paid. It was agreed between respondent and S. Webber Parker, as to this matter, "that all liability on the part of said Rodgers as to said note and mortgage shall be deemed extinguished immediately on the making of the deed by said Rodgers." The deed of the premises was subsequently made by Rodgers to S. Webber Parker in accordance with this agreement, and at that time, as well as at the date of the agreement quoted from, the mortgage and note had been assigned to and were in the possession of the said S. Webber Parker, and were, so far as the respondent's rights are concerned, paid off and extinguished when the deed was so made. For the effect of this deed as payment could not be defeated or invalidated by the previously recorded assignment of the note and mortgage to Frank L. Parker, the evidence showing, as it does, that Rodgers had no actual notice of said assignment. (Civ. Code, sec. 2935) Whether the note and mortgage are yet valid for any purpose against Olcese, who executed them jointly with respondent, is not a matter that concerns us here, for Olcese is not a party to this appeal.

The judgment and order should be affirmed.

Smith, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

Harrison, J., Garoutte, J., Van Dyke, J.