Opinion
Appeal from the Fifth Judicial District.
The complaint alleged that Ives Kuzart executed to plaintiff a note and to secure the same a mortgage upon certain lands; that Kuzart had since died, and that the defendant, Rinquet, was his administrator; that the note and mortgage had been duly presented to the administrator and by him, and also by the Probate Judge, allowed as a claim against the estate, and prayed judgment for the amount of the note, and that the mortgaged premises be sold and the proceeds applied to payment of the mortgage debt.
To this complaint the defendant demurred, on the ground that the District Court had no jurisdiction of the action. The demurrer was sustained, and final judgment rendered in favor of defendant from which plaintiff appeals.
COUNSEL:
O. Wolcott, for Appellant.
L. Quint, for Respondent, cited Faulkner v. Folsom's Executors (6 Cal. 412).
JUDGES: Field, C. J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
FIELD, Judge
The judgment on the demurrer in this case is reversed and the cause remanded upon the authority of Fallon v. Butler, ante, 24. So far as the enforcement of the mortgage is concerned, the District Court had jurisdiction of the action; but no judgment can be entered up for any deficiency which may remain after the application of the proceeds of the sale--the claim arising upon the personal obligation of the mortgagor having been duly allowed. The amount of any such deficiency will be payable, if at all, in the due course of administration, without any judgment of the District Court to that effect. Upon the filing of the remittitur in the Court below the defendants can have leave to answer the complaint.