This is an appeal from an order denying defendant's motion for a new trial in cause No. 1670, this day decided upon appeal from the judgment.
While the original appeal (Carpy v. Dowdell, 115 Cal. 677) was pending in this court, defendants having given no stay bond, a portion of the personal property mortgaged was sold under foreclosure proceedings. The judgment upon that appeal was subsequently reversed and the cause remanded for a second trial. Thereupon, defendants filed a supplemental answer, setting out that the notes and mortgages forming the subject matter of the litigation had been fully paid, satisfied, and discharged. At the present trial in the superior court, for the purpose of establishing this allegation of payment, defendants offered in evidence the execution and proceedings had thereunder pending the first appeal. This evidence was rejected, but evidence was received which proved substantially the same facts, and for that reason no error amounting to prejudice was committed by the trial court, even conceding the ruling erroneous, which proposition we do not decide. It is not disputed but that the sale took place pending the appeal, and that the proceeds of the sale, to the amount of the judgment, were paid over to the plaintiff. But the contention of plaintiff is that those acts did not in law amount to payment of the notes. With that contention we agree, and the court so found the fact and the law. The sale under foreclosure, subsequently followed by a payment of the proceeds thereof over to the plaintiff, may indicate that he has a large amount of money belonging to defendants; but it falls short of proving payment of the notes involved in this litigation. There is no pretense that defendants in any way consented to this sale, but, on the contrary, one of them testified that they did not consent. The judgment upon which the sale was based was reversed and set aside by this court. The foundation upon which the order of sale and all the proceedings had thereunder rested was taken away. By the reversal of judgment the litigation took the form it had prior to its entry, and the notes stood unpaid. Thereafter, the parties stood in the same position as if no judgment had ever been rendered. Counsel for appellants cite no authority which holds that the acts here considered amount to a payment of the notes. Upon the other hand, there is both authority and principle looking to the contrary. (2 Freeman on Judgments, sec. 482.)
The property which may be designated as the Chevalier wine was not included in the judgment of foreclosure. Hence in view of the law as declared in this cause upon appeal from the judgment, no error was committed by the trial court in rejecting the evidence bearing upon that transaction, for this evidence of Chevalier and others was not material upon the question of estoppel other than as to the Chevalier wine. Neither did it tend to establish a novation.
For the foregoing reasons the order appealed from is affirmed.
Harrison, J., and Van Dyke, J., concurred.
Hearing in Bank denied.