In Re Braun

I concur in the judgment and in the opinion of Mr. Justice Craig, but desire to state somewhat more fully the reason why, in my opinion, the court was without jurisdiction in the proceeding wherein it was sought to bring petitioner from Los Angeles County, the county of his residence and place of business, to submit himself for examination before the superior court of San Diego County.

Respondent expressly disclaims the idea that the proceeding in question is that which is provided by section 714 et seq. of the Code of Civil Procedure. Indeed, if the proceeding wherein petitioner was cited to appear before the superior court for San Diego County were a supplementary proceeding for the examination of a judgment debtor under section 714 et seq., there could be no question as to the invalidity of the order requiring his appearance in San Diego. Section 714 expressly provides that "no judgment debtor must be required to attend before a judge or referee out of the county in which he resides, or in which he has a place of business." Respondent's contention, as I understand it, is substantially this: After the entry of the deficiency judgment against petitioner, who is one of the two judgment debtors under the foreclosure decree in the suit to foreclose the chattel mortgage, the commissioner appointed by that decree to sell the mortgaged property discovered that certain of the properties covered by the chattel mortgage, and which had not been sold by him at the foreclosure sale, were in petitioner's possession or under his control. It was proper, therefore, so it is argued, to compel petitioner to disclose the whereabouts of those properties; and since no course of procedure is specifically pointed out by the code or by statute whereby the judgment debtor in a decree foreclosing a chattel mortgage can be compelled to disclose the whereabouts of the mortgaged property in order that it might be sold at foreclosure sale, the court, under section 187 of the Code of Civil Procedure, was free to adopt any suitable mode of proceeding, such, for example, *Page 206 as that which was adopted by it in the present instance. This argument to support the proceeding in question rests upon the assumption that, notwithstanding the entry of the deficiency judgment, the plaintiff in the foreclosure action had the right, nevertheless, to a further foreclosure sale — that is, the right to a foreclosure sale of such of the mortgaged property as had not previously been sold by the commissioner at the foreclosure sale conducted by him, because it had not been discovered by him in time for that sale. In my opinion the plaintiff in that action is estopped to claim the right to such further foreclosure sale while the deficiency judgment remains a subsisting adjudication of the rights of the respective parties. [2] The rule is elementary that all intendments are indulged in support of judgments of courts of superior jurisdiction. Their judgments import absolute verity. [3] It also is the settled law of this state that the mortgaged property is the primary fund out of which the debt is to be paid, and so long as any part of that property remains unsold there can be no deficiency judgment. (Woodward v. Brown,119 Cal. 283, 293, [63 Am. St. Rep. 108, 51 P. 2, 542].) In effect, therefore, the deficiency judgment is a solemn adjudication that, prior to its entry, the mortgage security had been wholly exhausted. To hold otherwise would countenance a collateral attack upon a judgment that, until set aside, is a final and conclusive determination of all the questions that its entry necessarily implies. For these reasons I am of the opinion that, until the deficiency judgment shall have been vacated (if it may be), the parties to the action are estopped to claim that there is any mortgaged property that was not sold at the foreclosure sale, and that, therefore, the commissioner appointed by the court in the foreclosure decree, for want of any subject matter of a further foreclosure sale, is without authority to make such sale, and the superior court is without jurisdiction to aid him in any such attempt.

Works, J., concurred. *Page 207