Motion to dismiss the appeal.
The complaint herein seeks the foreclosure of a mortgage given to secure two promissory notes executed to the plaintiff by the defendants. In their answer the defendants, in addition to other defenses, allege that the plaintiff subsequent to the execution of the notes had extended the time for their payment, and that this time had not expired when the complaint was filed. The court found this fact in accordance with the answer, and thereupon entered judgment that the action "is hereby dismissed on the sole ground that it was prematurely brought; such dismissal, however, not to be a bar to another action, and defendants to recover their costs herein." From this judgment the defendants have appealed.
After the brief of the appellants had been filed, the respondent moved to dismiss their appeal upon the ground that, as the judgment was rendered in favor of the appellants, they are not "aggrieved." and therefore have no right of appeal That portion of the judgment, however, which declares that the dismissil is not to be a bar to another action was not in *Page 577 accordance with the prayer of their answer and is in form a judgment against them. They have, therefore, upon the face of the judgment a right to appeal therefrom. Whether this part of the judgment is prejudicial to their rights or whether it was competent for the court in this action to determine the effect of its judgment in any subsequent proceeding between the parties, are questions that involve an investigation of the merits of the judgment appealed from, and cannot be determined upon a motion to dismiss the appeal.
The respondent also urges as another reason for granting his motion that the appeal was taken for delay, and is frivolous, and in support thereof has presented an affidavit to the effect that in a subsequent action brought by him to foreclose the same mortgage, the defendants herein have pleaded in abatement thereof the pendency of the present action by virtue of this appeal. Whether this appeal is sufficient to establish such plea of abatement must be determined, however, in that action. If it does have that effect, it cannot be urged as a reason for granting the present motion to dismiss the appeal herein. An appeal, moreover, will not be dismissed upon the ground that it is frivolous, or taken merely for delay. The remedy therefor must be sought under section 957 of the Code of Civil Procedure. (Lemon v. Rucker,80 Cal. 609; Randall v. Duff, 105 Cal. 271. See, also, Hooper v.Beecher, 109 N.Y. 609.)
The motion is denied.
Garoutte, J., and Van Dyke, J., concurred.