Justice Jerome Murphy
McCauley sought entry of a judgment against Wells Fargo Bank. The bank commenced an action to quiet title to correct a scrivener’s error in recording the mortgage issued by its predecessor. McCauley acquired title by deed, and now moved for dismissal on the ground that a prior action was pending. The court noted the prior action was a foreclosure proceeding, yet the complaint in this action was brought in equity to remove clouds upon, quiet title to and to reform the first pages of the mortgage held by the bank. It noted the purpose was to reflect the intent of the original parties to create a first mortgage lien on the premises, and judicially declare the bank as the owner and holder of a first mortgage, superior to McCauley and other lien holders. The court stated that to constitute a prior pending action to justify dismissal of the second in time action, it should be demonstrated the two actions were essentially the same. It stated if the only difference was the relief demanded, which could be amended, the motion to dismiss should be granted. The court ruled it was clear this action, and the prior action for foreclosure, did not seek the same relief, thus, there was no prior action pending which was subject to dismissal, denying McCauley’s motion.
