Hartman v. Smith

Decision Date19 August 1963
Citation33 Cal.Rptr. 147,219 Cal.App.2d 415
CourtCalifornia Court of Appeals Court of Appeals
PartiesS. HARTMAN, Plaintiff, Cross-Defendant and Respondent, v. Thomas E. SMITH and Gertrude M. Smith, Defendants, Cross-Complainants and Appellants. Civ. 20611.

Birenbaum, Anderson & McClelland, San Francisco, for appellants.

Shirley, Saroyan, Cartwright & Peterson, by Robert E. Cartwright, San Francisco, for respondent.

DRAPER, Presiding Justice.

This municipal court action for a real estate broker's commission ballooned into a broad array of cross-complaints by which the parties to the original exchange of real property claimed large damages against each other, causing transfer to the superior court. Only the last of the many pleadings is involved in this appeal.

That pleading is a 'counterclaim' of the Smiths, alleging that Crivello, as a part of the exchange agreement, assumed 'a certain obligation' of some $5,600 owed by Smiths, which was payable in installments. Smiths sought judgment for 5 payments of $75 each which they had made on that obligation, and decree for specific performance by Crivello of the assumption agreement. Crivello alleged that the obligation was secured by a deed of trust and chattel mortgage and that the security had not been exhausted. Judgment was for Crivello, and Smiths appeal.

The only record before us is a partial clerk's transcript, which does not include the agreement of exchange, the assumption agreement, the agreement allegedly assumed, or the deed of trust and mortage securing it. The court found that there has never been any resort to the security for the obligation.

Since none of the evidence is before us in any form, we must assume that this finding is supported. Under the 'one form of action' rule (Code Civ.Proc. §§ 726, 580a) the finding supports the judgment. Smiths argue that they are subrogated to the rights of their creditor against Crivello (Civ.Code, §§ 2848, 2849). But the claim of their creditor is secured by deed of trust, and under our statutes the creditor must resort to his security when he seeks money judgment upon the debt (Roseleaf Corp. v. Chierighino, 59 A.C. 45, 49, 27 Cal.Rptr. 873, 378 P.2d 97). His subrogee could not claim a greater right. There has been no resort to that security, nor do Smiths seek such resort now. Their pleading seeks only to collect the debt, either by money judgment or by decree that Crivello pay the creditor direct.

Moreover, there is...

To continue reading

Request your trial
2 cases
  • Walker v. Community Bank
    • United States
    • California Supreme Court
    • February 5, 1974
    ...a money judgment against the debtor for any deficiency. (Salter v. Ulrich, Supra, 22 Cal.2d 263, 267, 138 P.2d 7; Hartman v. Smith, 219 Cla.App.2d 415, 417, 33 Cal.Rptr. 147.) If the debtor does not raise the section as an affirmative defense, he may still invoke it as a sanction against th......
  • Roth v. Bains
    • United States
    • California Court of Appeals Court of Appeals
    • January 4, 2016
    ...operates as a complete defense where, as here, the lender's entire complaint is barred by the security first rule. (See Hartman v. Smith (1963) 219 Cal.App.2d 415, 417 [applying section 726 as a complete defense in secured creditor's action to enforce assumption agreement].) Indeed, Roth's ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT