HIBERNIA SAVINGS AND LOAN SOC. v. FELLA et al.

[No. 6,364.] HIBERNIA SAVINGS AND LOAN SOC. v. FELLA et al. Practice—Judgment against Codefendant—Cboss-Complaint. Appeal by defendants Fella and wife, from a judgment for plaintiff, and particularly from so much thereof as is in favor of their codefendant Anna Emig, and from an order refusing to set aside the judgment, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J. Action to foreclose a mortgage executed by the defendants Fella and wife, who suffered a default. Defendant Emig, in her answer, sets up a judgment recovered against defendant Fella, which she claimed to be a lien on the mortgaged premises, and prayed for affirmative relief, but the answer was not served on Fella or his wife. It was adjudged that defendant Emig recover from her codefendant Fella the sum of $3,000, etc., and that the same be a lien upon the mortgaged premises, and that the proceeds of the sale of the same, after paying the plaintiff, be applied to the payment of said amount. The defendants Fella and wife moved to set asido'the judgment, so far as the same was in favor of the defendant Emig ; filing affidavits to the effect that the land was their homestead prior to the recovery of the judgment by defendant Emig. William Leviston, for Appellants. J. F. Bachelder, for Respondent, Emig. Tobin & Tobin, for the Plaintiff, Respondent. [MAJORITY — Department No. 1, by the Court:] Department No. 1, by the Court: It is ordered that so much of the judgment in said cause as adjudges that the defendant Anna Emig recover from her co-defendant Charles Fella the sum of $3,000 with legal interest from April 9th, 1877, and $242.25 costs, and that said Anna Emig holds a lien for said amounts on the real property described in said judgment, be stricken out, and that the remaindcr of said judgment stand, and that the cause be remanded to the Court below to give leave to the defendant Anna Emig to serve her answer on the defendants affected thereby, and after issue joined therein, or in case of default to plead thereto, to determine the matters in controversy between said parties defendant, and dispose of the surplus proceeds of sale, if any there be, in accordance with the rights of the respective parties. And it is further ordered that the appellants recover from the defendant Anna Emig, the costs of the appeal.