Opinion
April 7, 1911.
Frank M. Avery, for the appellant.
Louis Dean Speir, for the respondent.
The action is to foreclose a second mortgage. The complaint, in addition to the customary allegations in such actions, also alleges that in order to protect his lien, and pursuant to special covenants in the mortgage, the plaintiff has paid certain sums for taxes on said property and for interest upon the prior mortgage, and these sums he seeks to include in the judgment of foreclosure. The defendant owner has interposed an answer in which it denies that it has any knowledge or information sufficient to form a belief as to the allegations respecting the payment of said taxes and interest. A similar denial of the allegations as to the assignment of the mortgage to plaintiff is not insisted upon as raising an issue, but the defendant appellant does insist that the denials as to the payment of taxes and interest do raise issues which it is entitled to have tried and disposed of according to the rules and practice prescribed by law. The order appealed from results from a motion for judgment by plaintiff under section 547 of the Code of Civil Procedure. It is now well settled that such a motion is a mere substitute for a motion for judgment on the pleadings at the trial; that it cannot be granted when the pleadings contain any material issue of fact upon which evidence must be taken to warrant judgment, and that upon such a motion nothing but the pleadings can be considered. In effect, therefore, such a motion must always involve only a question of law, that question being whether or not, upon the undisputed facts, the party making the motion is entitled to judgment. The present case does not answer to these requirements. While we may strongly suspect that the answer is interposed mainly for the purpose of delaying the foreclosure, and that the appellant does not expect to seriously combat the allegations of which it denies knowledge or belief, yet it is entitled to deny them and to put plaintiff to his proof respecting them. The answer, therefore, raises issues which will require evidence to dispose of, and it cannot be said to be frivolous or sham, so that it can be ignored. The order appealed from is not properly speaking an order for judgment, but is an order of reference to try and determine the issues raised by the answer, with a further provision that upon coming in of the referee's report, the plaintiff, without further notice, shall be entitled to enter a final judgment of foreclosure and sale. The order appealed from is entitled an interlocutory judgment, but it gains nothing by being so named, since it remains in fact and effect merely an order granting plaintiff's motion. It is not to be doubted that when the action is of such a nature that an interlocutory judgment must precede a final judgment, as for instance in an action for an accounting, and upon the pleadings the plaintiff is entitled to such an interlocutory judgment, he may move, therefore, upon the pleadings. But this is not such a case. When it has been tried upon the issues raised by the pleadings the appropriate judgment to be entered is a final judgment of foreclosure and sale, and even in a case wherein an interlocutory judgment could properly be granted on motion, it would be wholly irregular to order that final judgment should be entered on the referee's report without notice to the defendant so that he could be heard upon the confirmation of the report. We do not consider that section 547 of the Code of Civil Procedure justifies the practice that has been followed in this instance. The plaintiff like other litigants must be content to try his cause in due and orderly course. Nor can the order or interlocutory judgment, as it is termed, be justified as a compulsory order of reference under rule 60 of the General Rules of Practice. That rule provides for such an order only in cases in which some of the defendants are infants or absentees, and is designed for the protection of such defendants, and not to facilitate plaintiffs. Having arrived at the conclusion that the order appealed from must be reversed, it is unnecessary to consider the questions raised on the appeal as to the allowance of costs and the extra allowance.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings denied, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.