Cal. plaintiff's mortgage. The record shows an; 109 Pac. 635; Pettit v. Forsyth, 15 Cal. App. entry of her default for failure to answer 149, 113 Pac. 892. within the time allowed therefor. The rec- [2] That the defendant Florence A. Barr ord is silent, however, as to whether the de- was the owner of the fee of the mortgaged fault was set aside; but it presumably was, premises at the time of the commencement of for the record shows that this defendant lat- the action was, as we have seen by the averer "for herself alone, and not for her code- ment of her answer, an admitted fact in the fendants," answered the plaintiff's complaint. case, and consequently neither proof nor In her answer, after denying all of the ma- finding was necessary upon that phase of the terial allegations of the complaint for lack case. Taylor v. C. P. R. R., 67 Cal. 615, 8 of information and belief, it was specifically Pac. 436; Pratt v. Welcome, 6 Cal. App. and affirmatively admitted and alleged that 475, 92 Pac. 500; Pomeroy v. Gregory, 66 defendant Florence A. Barr, as purchaser, Cal. 572, 6 Pac. 492; Gregory v. Gregory, had an interest in the mortgaged property 102 Cal. 50, 36 Pac. 364; McMenomy v. and was the owner thereof in fee at the time White, 115 Cal. 339, 47 Pac. 109; Conway v. of the commencement of the action. None of Supreme Council, 137 Cal. 386, 70 Pac. 223; the other defendants answered, and shortly | Muller v. Rowell, 110 Cal. 318, 42 Pac. 804. prior to the trial of the action the plaintiff directed, and there was thereupon entered, a dismissal of the action as to the mortgagor, the corporation defendant, and all of the other parties originally joined as defendants, save and except the defendant Florence A. Barr. Upon the issues raised by her answer the trial court round in substantial accord with the allegations of the complaint and, among other things, that the corporation defendant executed the note and mortgage in suit on the 1st day of September, 1914, and that on that date the corporation defendant was the owner in fee of the mortgaged property. The findings make no mention of who was the owner of the fee of the mortgaged property at the time of the commencement of the action, but there is a finding "that the defendant Florence A. Barr has an interest in said * real property and that her said interest is subsequent to and subject to plaintiff's mortgage lien," and the judgment provided that she be paid any surplus over and above the mortgage indebtedness. Judgment was accordingly entered for the plaintiff, foreclosing the mortgage, from which the defendant Florence A. Barr alone has appealed upon the judgment roll. [1] The answer of the defendant Florence A. Barr admitted she was the owner of the fee of the mortgaged property at the time of the commencement of the action, and therefore cured the defect in the complaint, if any, resulting from the failure to plead that fact. Schenck v. Fire Ins. Co., 71 Cal. 28, 11 Pac. 807; Cohen v. Knox, 90 Cal. 266, 27 Pac. 215, 13 L. R. A. 711; Shively v. Land & Water Co., 99 Cal. 259, 33 Pac. 848; County of San Diego v. Seifert, 97 Cal. 594, 32 Pac. 644; Vance v. Anderson, 113 Cal. 532, 45 Pac. 816; Abner Doble Co. v. Keystone Co., 145 Cal. 490, 78 Pac. 1050; McGillivray v. Miller, 3 Cal. App. 188, 84 Pac. 778; Donegan v. Houston, 5 Cal. App. 626, 90 Pac. 1073; Grangers' Union v. Ashe, 12 Cal. App. 757; Merryman v. Kirby, 13 Cal. App. 344, [3] The defendant Florence A. Barr, as a successor in interest of the mortgagor, could have been made defendant in the first instance without joining the mortgagor. Title Ins. Co. v. Miller, 3 Cal. App. 54, 84 Pac. 453; Bigelow v. Bush, 6 Paige (N. Y.) 343; Ingham v. Weed, 5 Cal. Unrep. 645, 48 Pac. 318. The purpose of the action to foreclose was "to subject to sale the title of the mortgagor-that is, such title as he had at the date of his mortgage-and to cut off all the rights of parties subsequently becoming interested therein." Burton v. Lies, 21 Cal. 88, 92; Goodenow v. Ewer, 16 Cal. 461, 468, 76 Am. Dec. 540; Boggs v. Hargrave, 16 Cal. 559, 76 Am. Dec. 561. [4] The mortgagor, the corporation defendant, was a proper party to the action, and would have been a necessary party thereto, if the plaintiff had insisted upon a personal deficiency judgment as was originally prayed for. Code Civ. Proc. § 726. However, inasmuch as the right to a deficiency judgment was ultimately abandoned by plaintiff, and it appearing upon the coming in of the answer of defendant Florence self of the title to the mortgaged property, A. Barr that the mortgagor had divested itand that defendant Florence A. Barr was the owner in fee of the property at the time of the commencement of the action, the mortgagor was no longer a necessary party. [5] The dismissal of the defendant corporation did not, therefore, affect the right of the plaintiff to obtain a judgment of foreclosure against the defendant Florence A. Barr, for the record as a whole disclosed a cause of action against the grantee of the mortgagor. San Diego Realty Co. v. Hill, 168 Cal. 637, 143 Pac. 1021; McLaughlin v. Stewart, 1 Ont. Law Rep. 295; 27 Cyc. 1583. The judgment appealed from is affirmed, with a penalty of $50 against the defendant Florence A. Barr for the institution and prosecution of a frivolous appeal. We concur: WILBUR, J.; SLOANE, J. (190 P.) A judgment is conclusive in all other actions involving the same question, and on all matters involved in the issues which might have been litigated and decided. 2 Interpleader 26-Defendant can put in issue plaintiff's right to compel interpleader. Defendant in interpleader has the right to put in issue the question whether or not the facts are such as to entitle plaintiff to compel defendants to interplead. 3. Interpleader 32-Right to compel interpleader only question which can be litigated. 8. Interpleader 32 Bank Interpleading drawer and holder of certified check could not be compelled to litigate other liability. A bank which interpleaded its depositor, who drew a certified check, and the holder of the check, could not have been compelled to litigate any liability in the action other than its admitted one for the amount of the check until it was first determined on which contract, the one with the depositor, or the one effected by the certification, it was liable. 9. Judgment 590 (4)-Defendant did not waive claim to damages by failing to set it up as bar to suit for interpleader. Holder of a certified check did not waive her claim for damages against the bank through its failure to pay it, by failing to set up such claim as a bar to the bank's interpleader suit against herself and the drawer of the check, on the ground the bank had an interest in the outcome of the litigation because of its liability for damages, if the holder was found entitled to payment. 10. Interpleader 10-Interest of plaintiff to defeat suit must be in subject-matter. defeat the relief prayed must be in the very An interest of plaintiff in interpleader to thing or fund itself which is the subject-matter In action to compel interpleader, the only question which can be litigated between plaintiff and defendants is the right to compel interpleader, and neither defendant can obtain affirmative relief against plaintiff, and their claims against him arising out of the subjectmatter of the interpleader cannot be put in is-11. Interest 61-No action for interest as sue. damages after payment in absence of agreement. 4. Interpleader 11-Bank entitled to interplead conflicting claimants of fund. Where a bank was holder of a fund admittedly due from it in which it claimed no interest, but there were conflicting claims to the fund between which the bank could not decide without risk of injury to itself, under Code Civ. Proc. § 386, it had the right to bring an action to compel the conflicting claimants to inter.plead. of the controversy. Ordinarily interest which is allowed as damages is strictly incidental to the debt, and no action for such damages can be maintained after the debt ceases by payment of the principal as such, in the absence of an agreement reserving the right, in view of Civ. Code, § 3290, a rule which cannot be invoked where the conditions of payment are such that the person entitled cannot assert the claim to damages at time of payment. 5. Interpleader 10-Plaintiff must be dis- 12. Interest 62-Bank which severed claim interested stakeholder. Plaintiff in interpleader must be a disinterested stakeholder, and dispute as to the amount due is fatal to the action. 6. Interpleader 10-Bank could not have interpleaded adverse claimants of proceeds of interest-bearing check. Had a check for the proceeds of which the bank on which it was drawn required adverse claimants to interplead itself been interest-bearing, claim of one of the claimants to interest would have had the effect of putting in issue the extent of the obligation of the bank on the check, and the action could not have been maintained. 7. Judgment ~713(2) Estoppel in subsequent action to claim greater obligation than admitted in interpleader suit. If a defendant in an interpleader suit failed to question the extent of the obligation of plaintiff, he is estopped from later attempting to claim a greater obligation than that admitted and consented to in the interpleader. to interest as damages from obligation on certified check cannot complain of subsequent action for such damages. Where a bank which had certified a check severed the holder's claim to interest as damages for failure to pay from the original obligation by compelling the holder to prove her right to the amount of the check in its interpleader suit against the holder and the drawer without giving the holder an opportunity to present her claim for damages, it cannot complain of the holder's subsequent action for such interest as damages. 13. Interest 20-Deposit of fund in court in interpleader action stopped running. Holder of certified check, which bank failed to pay, interpleading drawer and holder for proceeds, held entitled, as damages for the failure to pay, only to interest from the date of the refusal to the date of the deposit of the fund in court in its interpleader action. Department 2. Appeals from Superior Court, Kern County; J. W. Mahon, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by Sarah L. Conner, executrix of "In Southern Pac. R. R. Co. v. United States, the last will of C. L. Conner, deceased, 168 U. S. 1, it is said: "The general principle against the Bank of Bakersfield, a corpora- announced in numerous cases in this court is tion. From a judgment for plaintiff, both that the right, question, or fact, definitely put in parties appeal. Affirmed. issue and directly determined by the court of competent jurisdiction as a ground of recovery, Peter A. Breen, of San Francisco, and C. cannot be contested in a subsequent dispute C. Cowgill, of Sonoma, for plaintiff. between the same parties or their privies.' J. W. Wiley and Wiley & Lambert, all of Green v. Thornton, 130 Cal. 482, 485, 62 Pac. Bakersfield, for defendant. 750, 751. 99 [1] Moreover, a judgment is conclusive in all other actions involving the same question and upon all matters involved in the issues in the case. Bingham v. Kearney, 136 Cal. 176, 68 Pac. 597. A party cannot, however, be held to be precluded from pursuing, in a subsequent action, matters which were not within the issues in the former action, and the present plaintiff can only be held to have waived her right to obtain damages for the refusal to pay the check in the event that she was entitled to set up this right in the interpleader suit and failed to do so. [2] A defendant in interpleader has the right to put in issue the question as to whether or not the facts were such as to entitle the plaintiff to compel the defendants to interplead. It has therefore been held in effect that, if the defendants in interpleader have fully litigated their claims without objection, they will be deemed to have consented to the remedy invoked and granted, and will not later be heard to object that the plaintiff's complaint did not state a cause of action for interpleader or that plaintiff's obligation to them was anything more or less than they consented and acknowledged it to be in the first instance for the purposes of interpleader. San Francisco Savings Union v. Long, 123 Cal. 107, 55 Pac. 708. LENNON, J. On July 21, 1910, defendant, the Bank of Bakersfield, certified a check in the sum of $3,799.66, drawn by G. J. Plantz and payable to the Kern Valley Bank. Plantz which might have been litigated and decided then delivered the check to the Kern Valley Bank for the account of C. L. Conner. Conner died a short time thereafter and plaintiff herein was appointed executrix of his will. On May 19, 1911, plaintiff presented said check to the Bank of Bakersfield, which refused payment. On July 20, 1911, this bank commenced an action in interpleader requesting that said executrix and Plantz be required to set out their conflicting claims to the money called for by the check. The executrix and Plantz thereupon interpleaded between themselves and the case came on for trial on September 21, 1912, on which date the amount of the check, namely, $3,799.66, was deposited in court by the bank. On December 9, 1912, the court rendered judgment in favor of the executrix and on March 6, 1917, when this judgment became final, the fund deposited in court was paid by the clerk to the executrix in accordance with the judgment. The present action was brought by the executrix to recover from the Bank of Bakersfield damages for its refusal to pay the check when presented. The lower court sustained a general demurrer to the complaint, and ordered judgment thereon in favor of defendant, which judgment was reversed by this court. Conner v. Bank of Bakersfield, 174 Cal. 400, 163 Pac. 353. Defendant then answered. At the trial plaintiff waived all claims for damages except the claim for interest at the rate of 7 per cent. per annum on said $3,799.66 from May 19, 1911, to March 6, 1917. The court gave judgment for plaintiff for $356.10 as damages; that sum being interest at 7 per cent. on $3,799.66 from May 19, 1911, the date of the presentation of said check, to September 21, 1912, the date of deposit in court. The bank appeals from this judgment, claiming that plaintiff is not entitled to any damages. An appeal is also taken by the executrix, who contends that the amount awarded is too small. The appeals were presented together. The contention of the bank in this case is that the plaintiff herein, by stipulating in the interpleader suit that the bank was only a stakeholder in so far as the interpleader suit was concerned, and that the check might be deposited in court, and by litigating her claim to the fund without objection, released the [3] However, in an action to compel interpleader, the only question which can be litigated between the plaintiff and the defendants therein is the right to compel interpleader. Neither of the defendants in such an action can obtain affirmative relief against the plaintiff and their claims against the plaintiff, if any, arising out of the subjectmatter of the interpleader, cannot be put in issue in the interpleader suit, but will be considered only when presented in another and different action. Los Angeles v. Amidor, 140 Cal. 400, 73 Pac. 1049; Conner v. Bank of Bakersfield, supra. [4, 5] The Bank of Bakersfield was the holder of a fund which admittedly was due from it and in which it claimed no interest whatever, but there were conflicting claims to the fund between which the bank could not decide without risk of injury to itself. It therefore had the right to bring an action to compel the conflicting claimants to the fund to interplead. Code Civ. Proc. § 386. It is true that the plaintiff in interpleader must be a disinterested stakeholder and a dispute (190 P.) [6, 7] Had the check itself been interest-lief therein prayed for, must be in the very bearing, plaintiff's claim to interest would thing or fund itself, which is the subject-mathave had the effect of putting in issue the ter of the controversy. extent of the obligation of the bank on the check and, therefore, the action could not have been maintained. Appeal of the Bridesburg Manufacturing Co., 106 Pa. 275. In such a case, if a defendant failed to question the extent of the obligation of the plaintiff, he would be estopped from later attempting to claim a greater obligation than that admitted and consented to in the interpleader. But in the instant case the check was not interest-bearing, and there is no question but that the amount deposited by the bank in the interpleader suit was all that was due on the bank's original obligation. [8] In the interpleader suit the bank admitted an obligation due either to a depositor, Plantz, or the holder of a certified check, the executrix. Both obligations were contractual in nature, and no other or different liability was admitted by the bank in that action, nor could it have been compelled to litigate any liability in that action. No claim for damages for breach of contract could be litigated until it was first determined upon which contract the bank was liable, and it was for the purpose of determining the latter question that the interpleader suit was brought. The claim now set up by the executrix is a claim for damages for breach of contract by refusing to pay on demand, the measure of such damages being interest on the amount of the check from the date of the refusal, and it was incumbent upon the executrix to prove her right to receive payment as against Plantz before asserting this claim to damages. While the bank admitted its liability on the original obligation to whichever defendant proved his claim to be superior, it admitted no liability for refusal to pay on demand, and, for all that appeared in the interpleader suit, it might have had defenses to a claim for damages for breach of contract, such as insufficiency of the demand for payment, etc. [9, 10] The claim for damages for breach of contract was therefore dependent upon the outcome of the interpleader suit, but could not be litigated in that suit, for it was a claim for affirmative relief by one of the defendants against the plaintiff, and was not part of the original obligation which constituted the subject-matter of the controversy. Los Angeles v. Amidor, supra. Nor did the executrix waive her claim to damages by failing to set it up as a bar to the interpleader suit upon the ground that the bank had an interest in the outcome of the litigation because of its liability for damages in the event that the executrix was found to have been entitled to payment. The interest of the bank was not of such a nature as to pre vent it from being a mere stakeholder of the fund which was the subject-matter of the interpleader suit. An interest of the plaintiff in interpleader in order to defeat the re "An interest in the legal question at issue to be determined by the result of the litigation will not prejudice the plaintiff's right to the relief. If, therefore, the plaintiff has with respect to other property not the subject-matter of the present suit, an interest that one of the defendants shall succeed, because the decision thus made will be favorable to his own future litigation concerning that other property-this is no objection to his maintaining a suit for an interpleader." Pomeroy's Equity Jurisprudence, vol. 4, § 1472; Oppenheim v. Wolf, 3 Sandf. Ch. (N. Y.) 571. Sutherland [11, 12] Ordinarily interest which is allowed as damages is strictly incidental to the debt and no action for such damages can be maintained after the debt ceases by payment of the principal as such in the absence of an agreement reserving the right. on Damages (4th Ed.) vol. 1, § 372; Civ. Code, § 3290. This rule cannot be invoked, however, where the conditions of payment are such that the person entitled to payment is precluded from asserting the claim to damages at the time of payment. The bank severed the claim to interest as damages from the original obligation by compelling the executrix to prove her right to the amount of the check in the interpleader suit without an opportunity to present the claim for damages. The bank is not, therefore, in a position to complain of the present action. McDonald v. Holdom, 208 Ill. 128, 70 N. E. 21. The statements in the conclusions of law and judgment of the court in the interpleader suit to the effect that upon payment to the executrix the bank should be absolved from further liability on the check to both or either of said defendants undoubtedly refer to the liability for the amount of the check alone, which, as above stated, was the only liability on the part of the bank which could have been passed upon by the court under the issues in that case. Likewise the stipulation was not extraneous in its application, but went only to the extent of recognizing the bank as a stakeholder for the purposes of the interpleader action. [13] While the present plaintiff is not estopped from bringing this action for damages, she cannot be held entitled to a greater amount of damages than that awarded by the trial court, namely, interest from the date of refusal to the date of deposit in court. This is so because: "Where there is a legal contest between persons other than the debtor, rendering it doubtful to whom the debt should be paid, the debtor is not generally chargeable with interest during such contest, although if the fund in such cases has been used by the debtor and has earned interest the court will allow interest thereon notwithstanding the pendency of the litigation. *** Where a fund in litigation or the amount of a disputed claim is deposited in | 4. Bastards 13- Father of Illegitimate court, or subject to its order, interest is not child may adopt. recoverable thereon during the time it remains so deposited." 22 Cyc. p. 1558. "Where a bill of interpleader is properly filed, the payment of the money into court stops the running of interest; but if the fund is not paid into court it is proper to compute interest up to the rendition of the final decree." 23 Cyc. 29; Sutherland on Damages (4th Ed.) vol. 1, p. 1223. When a debtor has deposited the money beyond his control in the custody of the court and within the reach of the rightful owner he has done all that the law requires of him. Under such circumstances, in the absence of fraud or collusion, he cannot be held for damages for a continuing breach of contract because of the wrongful claims of third parties. If the plaintiff in interpleader were liable for interest as damages from the date of the refusal to pay until the payment to the person entitled, the burden of the loss caused by the necessity of deciding between conflicting claims would be thrust upon the innocent stakeholder, thus producing the very result which the action of interpleader was designed to avoid. The judgment is affirmed. (Supreme Court of California. June 16, 1920. Rehearing Denied July 15, 1920.) 1. Appeal and error 1011(1)—Finding on conflicting evidence not disturbed. A fact finding supported by evidence, though conflicting, will not be disturbed on appeal. 2. Adoption 3-Statutory requirements must be strictly followed, The proceeding for adoption is a special one, and the requirements of the statute must be strictly construed, particularly with respect to the jurisdiction of the court. 3. Adoption 10-Only court of county of petitioner's residence has jurisdiction to order adoption. Under Civ. Code, § 230, the father of an illegitimate child may adopt it, so that it will be deemed legitimate, though he is not married to the mother, by receiving it into his home, though the home into which he receives it, etc., is one in which he and the mother are living. 5. Adoption 16-Father who had adopted bastard has sufficient interest to attack adoption by another. The father of a bastard who had adopted the child by receiving it in his home so as to Civ. Code, § 230, has sufficient interest, being give it the rights of a legitimate child, under not only the natural, but the lawful, father to attack adoption by another. 6. Appeal and error 1167-Mere error of pleading or procedure no ground for reversal. Under Const. art. 6, § 42, the fact that have been sought by bill in equity instead of relief from a void order of adoption should petition or motion, the six-month period allowed by Code Civ. Proc. § 473, permitting such attacks, having expired, is no ground for reversing an order setting aside the previous order of adoption; the error being only one of pleading or procedure. 7. Appeal and error 916(1)-No presumption as to how pleading was entitled. Where a pleading seeking vacation of order of adoption was in all respects a formal pleading, save perhaps the title, which was not shown by the record, the appellate court will not presume anything on the subject; it being claimed the proceeding should be by independent action instead of petition. 8. Judgment 18(3)-Defect in entitling pleading not invalidating judgment. Under Code Civ. Proc. § 1046, a defect in the title of a pleading will not invalidate a judgment if it intelligibly refers to the action or proceeding; so, where the pleading attacking an order of adoption was in all other respects formal, it cannot be attacked because entitled as a petition instead of an independent pleading. Department 1. Appeal from Superior Court, City and County of San Francisco; J. W. Mahon, Judge. In the matter of the adoption of Francelia McGrew, a minor. On petition of Leland Chester Zimmerman, an order declaring the child was adopted by Hazel McGrew Gilbert was vacated, and she appeals. Affirmed. Byron C. Parker, of San Francisco (Thomas P. Wickes, of San Francisco, of counsel), for appellant. Dahlin & Jackson, of San Francisco, for respondent. Under Civ. Code, § 226, declaring that one who desires to adopt a child may for that purpose petition the superior court of the county in which the petitioner resides, the court of the county in which the person desiring to adopt the child resides is the only one which has jurisdiction to declare and order an adoption, so an order of adoption of the superior court of a county of which the petitioner was SHAW, J. This is an appeal from an ornot a resident is void for want of jurisdiction. der purporting to vacate a previous order |