Bartlett v. Cottle

         Section 726 of the Code of Civil Procedure is designed merely to protect defendants from more than one action for the recovery of a debt. If the plaintiff elects to proceed on the debt alone he may do so, but will be debarred from subsequently attempting to foreclose the security in another action. ( Ould v. Stoddard, 54 Cal. 613.)

         OPINION

          THORNTON, Judge

         It is contended that the judgment in this case ought not to stand, because the security was not valueless when the action was commenced. On an examination of the testimony, we are of opinion that the security was not without value at the time referred to. The respondent in his calculation of value of the security leaves out the value of the houses on the leased property (the security in question), which was testified to by Perrine, the lessor. This action on the note, then, cannot be maintained under the provisions of section 726 of the Code of Civil Procedure. According to this section, there can be but one action, and that of the character prescribed in it.

         Judgment and order reversed and cause remanded.

         MYRICK, J., and SHARPSTEIN, J., concurred.