Maxwell v. Ricks
| Decision Date | 17 December 1923 |
| Docket Number | 4088. |
| Citation | 294 F. 255 |
| Parties | MAXWELL v. RICKS. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carroll B. Graves, of Seattle, Wash., for plaintiff in error.
C. A Riddle, of Seattle, Wash., and Theo. J. Roche, of San Francisco, Cal., for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
Maxwell brought this action upon two promissory notes executed and delivered by Eva L. Ricks to one Moore at San Francisco. The debt was secured by a mortgage to Moore made in California by Eva L. Ricks upon certain real estate in California. Moore payee of the notes, before maturity indorsed and delivered them to Maxwell, plaintiff in error here, who is a citizen and resident of the state of Washington, and Maxwell thereafter brought this action against the maker, alleging that the property mortgaged by Eva L. Ricks to secure the debt had no market value, and offering to tender the instrument in court and retransfer to Eva L. Ricks. Defendant Ricks denied that the security was without value, and set up that the notes were given without consideration, based upon allegations of fraud alleged to have been practiced by the payee Moore, and also alleging that neither the plaintiff nor the payee had brought any action for the foreclosure of the mortgage, as required by part 2, title 10, chapter 1, of the California Code of Civil Procedure. After trial to the court the action was dismissed, and judgment went for defendant upon the ground that, the notes having been executed in California and having been secured by a mortgage on lands in that state, suit in foreclosure should first be brought in California and the mortgage security exhausted before the initiation of any other suit or proceeding. To review the decision, Maxwell brought writ of error.
Defendant in error has moved to dismiss the writ because no exceptions were taken to the rulings of the court during the progress of the trial, no bill of exceptions appears in the record, and because the record fails to show any finding made by the court except a general one in favor of the defendant. But inasmuch as it appears from the judgment itself that the only question decided by the court was a construction of a certain statute of the state of California, and judgment was rendered for the defendant solely upon the decision of that point, the question whether there is support for the judgment as challenged by the plaintiff in error is before us. Moline Plow Co. v. Webb, 141 U.S. 616, 12 Sup.Ct. 100, 35 L.Ed. 879; Worthington v. McGough, 192 F. 512, 112 C.C.A. 662. If plaintiff had sought to recover the debt in the courts of California, his action and remedy would have been controlled by part 2, title 10, chapter 1, of the California Code of Civil Procedure, which provides that there can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property, which action must be by proceedings in foreclosure and sale; and, as in the courts of the state there could be but one such action, plaintiff could not waive his right to proceed in foreclosure and exhaust the security given, even though such mortgage security might prove valueless. Barbieri v. Ramelli, 84 Cal. 154, 23 P. 1086; Hibernia Bank v. Thornton, 109 Cal. 427, 42 P. 447, 50 Am.St.Rep. 52.
But those rulings do not affect the present case. The right to contract the debt here sued upon and to give the notes was in no way conferred by the statutes of the state of California. It was a common-law right, and action to recover money due on the notes is of a transitory character, maintainable 'wherever a court may be found that has jurisdiction of the parties and the subject-matter. ' Dennick v Railroad Co., 103 U.S. 11, 18, 26 L.Ed. 439. Nothing in the California statute limits the obligations upon the contract itself, or imposes conditions upon the exercise of jurisdiction to pursue any remedy available to enforce it outside of the state. Felton v. West, 102 Cal. 266, 36 P. 676. We cannot apply the argument that the right to have the security taken in satisfaction of the notes upon foreclosure is a substantial right 'going to the substance of the transaction itself, and belongs to the constitution of the contract,' so as to exclude the jurisdiction of the federal court in another jurisdiction. Granting the full force of the principle that in every forum a contract is governed by the law with a view to which it was made, and that as to its validity and operation the contract between Ricks, plaint...
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In re Mitchell, 00-13412-MAM.
...for the enforcement of a right secured by a mortgage or a lien on property.2 55 Am.Jur.2d Mortgages § 519 (1996) (citing Maxwell v. Ricks, 294 F. 255 (CCA 9th Cir.1923); Barbieri v. Ramelli, 84 Cal. 154, 23 P. 1086 (1890); Union Guardian Trust Co. v. Rood, 308 Mich. 168, 13 N.W.2d 248, 151 ......
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Bayside-Flushing Gardens v. Beuermann, 7771.
...remedy in an action for recovery of any debt, might not be enforced in the courts of New Mexico. To the same effect is Maxwell v. Ricks, 9 Cir., 294 F. 255, 42 A.L.R. 460. Thus it appears this court should not permit the moratorium laws of New York to be invoked as a set-off or as a defense......
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Ingraham v. Williams
...court may be enforced in a manner other than that prescribed by West's Ann.Calif.Code of Civil Procedure § 726. Maxwell v. Ricks, 9 Cir., 1923, 294 F. 255, 42 A.L.R. 460; Dolbear v. Foreign Mines Development Co., 9 Cir., 1912, 196 F. 646, certiorari denied, 1913, 229 U.S. 621, 33 S.Ct. 1049......
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Commercial Nat. Bank of Los Angeles v. Catron, 409.
...sought to be enforced in other courts, and that it has no application to a suit upon a note secured by a deed of trust. In Maxwell v. Ricks (C. C. A.) 294 F. 255, where there was a suit upon two notes, the question arose whether the remedy was affected by a mortgage security. It was concede......