A general demurrer to the complaint was sustained, and, plaintiffs not offering to amend within the time allowed, judgment was entered for defendants. Plaintiffs appeal from the judgment.
In appellants' points and authorities it is merely asserted that the complaint does state facts sufficient to constitute a cause of action, and in support of the assertion a general reference is made to eleven paragraphs of the complaint, which are designated by numbers. There is nothing more in the points that can be designated as argument, and no authorities are cited except section 694 of the Code of Civil Procedure. The complaint, with exhibits attached, occupies seventy pages of the transcript. The gist of the complaint, when seen through the mass of the matter set forth, seems to be this: That in May, 1892, appellants executed to the defendant, the Security Loan and Trust Company, a mortgage on certain described lots of land to secure certain promissory notes made by appellants to said company; that on October 22, 1898, said company commenced an action to foreclose said mortgage, and that appellants employed an attorney, W.D. Peck, to defend the action; that the attorney filed a demurrer to the complaint, which was afterwards, by his consent, overruled; that on February 21, 1899, the said attorney made and filed a stipulation on the part of the appellants that appellants would make no further defense to the action, that their default be entered, and that judgment might be rendered for plaintiff in said action as prayed for in his complaint; that on said twenty-first day of February, 1899, a judgment of foreclosure was rendered and entered; that the defendant herein, Thomas F. Keefe, was appointed a commissioner to sell the mortgaged premises; that on the twenty-second day of January, 1899, said Keefe did sell said premises to the respondent herein, the said Security Company, and *Page 568 gave it certificates of sale, and on January 22, 1900, executed to respondent deeds for the land so sold. The main purpose of the action is to have the said judgment of foreclosure set aside, and the said sale of the mortgaged premises vacated.
It is averred that appellants' attorney in the foreclosure case was not authorized to make the stipulation above noticed, and that he did so by the procurement of the plaintiff in said action, etc. But it is also averred that within the time allowed by section 473 of the Code of Civil Procedure, appellants moved the court in which the foreclosure judgment had been entered to set aside the default and vacate that judgment, that the court made an order denying said motion, and that appellants had appealed from that order. It appears from the records of this court that the appeal from the said order was afterwards heard and the order affirmed, although that fact is not important here, and perhaps cannot be considered. (Security Land and TrustCompany v. Estudillo, 134 Cal. 166, 66 P. 257].) At all events, the appellants by said motion to vacate the judgment had an ample remedy at law for their alleged grievance; and equity will not interfere where the remedy by law is ample.
It is averred that the commissioner sold the mortgaged premises in nine different parcels, whereas it should have been sold in different and more numerous parcels as demanded by appellants by written notice served on the commissioner, and that therefore the said sale was void. But, in the first place, there is no averment of facts showing that appellants were injured by the manner of sale; and, in the second place, it was decreed in the judgment that the sale should be made in nine named parcels, and the commissioner in making the sale followed the judgment, and, such being the case, the only remedy for the alleged grievance was an appeal from the judgment. In Ontario Land etc. Co. v. Bedford,90 Cal. 181, [27 P. 39], and Marston v. White, 91 Cal. 327, [27 P. 588], it is said that the provision of section 694 of the Code of Civil Procedure — that upon the sale under execution of land consisting of several well-known lots or parcels the parcels must be separately sold, and according to the direction of the judgment debtor if he be present at the sale — applies to a sale under a judgment of foreclosure only when the judgment is silent as to the method of sale; and while what is said in *Page 569 those cases may not be a direct adjudication on the subject, still the rule must undoubtedly be as there stated. That part of the judgment in the foreclosure suit which directs how the mortgaged premises shall be sold is certainly not void; and, if it was erroneous, the only remedy was by appeal from the judgment.
The foregoing are the main points in the case, and we see nothing else necessary to be specially noticed. The complaint does not state facts sufficient to constitute a cause of action and the demurrer was properly sustained.
The judgment appealed from is affirmed.