DocketNumber: Sac. No. 469.
Judges: Van Dyke
Filed Date: 5/12/1900
Status: Precedential
Modified Date: 10/19/2024
After further consideration of this case we have come to the same conclusion arrived at in Department One, and adopt the opinion therein filed July 3, 1899, as the opinion of the court in Bank, as follows:
1. Upon the trial of this cause the court found that the plaintiff was entitled to judgment in his favor in the sum of $7,668.12, and that the same was a lien upon the lands described in the complaint, and directed a sale thereof. The findings of fact were filed March 16, 1895, and judgment thereon entered March 18, 1895. An appeal from the judgment was dismissed by this court March 6, 1896 (Barnhart v. Edwards,
The direction of this court for the entry of judgment in accordance with the findings as corrected had reference to the ultimate act to be performed by the superior court, but did not prescribe the judgment which it should enter. The form of the judgment, including its various provisions, was left to the judgment of that court to be exercised with due regard to preserving and protecting the rights of the several parties thereto under appropriate and established principles of equity. If any change in the relation of the parties to the judgment or to the property involved therein had supervened pending the appeal, and was brought to the notice of the court, it was proper for it to adapt its judgment to such change so far as would be consistent with the rights of others and with recognized rules of procedure. *Page 575
Section
2. Upon the above-named appeal from the judgment of March 18, 1895, the appellant gave no undertaking to stay proceedings, and on December 14, 1895, the plaintiff caused the mortgaged lands to be sold in accordance with the judgment, and in June, 1896, after the time for redemption had expired, received a deed of conveyance therefor from the sheriff. October 13, 1897, the superior court made an order upon the motion of the respondent herein — to whom, prior to the commencement of the action, the original mortgagor had conveyed the lands subject to the mortgage — vacating and setting aside the sale by the sheriff, and directing that he be restored to the possession of the premises so sold; and, *Page 576 further, that the plaintiff, within ten days thereafter, account for the rents, issues, and profits received by him during the possession of the premises, the same to be applied in and credited to the judgment in his favor, and that until such accounting was had the execution of the judgment should be stayed. From this order the plaintiff has also appealed.
No argument has been made or authority cited in support of the latter portion of this order, and we are not aware of any principle of law by which it can be sustained. The judgment under which the sale was made had never been vacated or set aside, and the dismissal of the appeal therefrom had the effect to affirm the judgment. (Code Civ. Proc., sec. 955.) The direction by this court upon the appeal from the order denying a new trial, to deduct certain items from the amount found due to the plaintiff, rendered it incumbent upon the superior court to make its judgment correspond with such correction, and the further direction for the entry of judgment in accordance with such correction had the same effect. This was evidently the understanding of the respondent, since he stated in his notice of motion for an order modifying the judgment that by the judgment of this court the judgment of the superior court was "modified and directed to be modified." This court made no order setting aside or reversing the judgment appealed from, but its order was limited to a modification of the judgment in accordance with certain specific directions.
The rule is well settled in this state that upon the reversal of a judgment a sale to the plaintiff of the defendant's property for the satisfaction of the judgment in whole or in part will be set aside. The reason for this rule is that, as the plaintiff's claim to have the property sold depends upon the judgment, the reversal of the judgment destroys this claim, and takes away all right to retain the defendant's property. The reasons for the rule ceases, however, when a judgment directing the sale of specific property, as in the case of the foreclosure of a mortgage to satisfy a lien thereon, is afterward modified on appeal by merely reducing the amount of the lien without changing that portion which directs a sale of the property. In such a case, unless the defendant tenders to the plaintiff the amount which the judgment as modified declares *Page 577
he is entitled to receive from the sale of the lands, together with the costs incurred upon the original sale, it should be made to appear that there was some unfairness in the sale, or that the property would upon a resale bring a larger amount than at the first sale, before he could claim a right to have the sale set aside. (Freeman on Executions, sec. 347; Jesup v. City Bank,
The superior court was not authorized to make the order appealed from by reason of its action in causing the judgment of September, 1897, to be entered. The plaintiff had appealed from that judgment, and from the order directing its entry prior to the making of this order, and thereby deprived the judgment of all effect as the basis of any action of the court dependent thereon. Moreover, the court would not have been authorized to stay the enforcement of this judgment upon the motion of the respondent by reason of anything that had occurred prior to its entry, and which could have been considered by the court before it was entered.
The action of the court in entering the judgment of September 3, 1897, and its order of October 13, 1897, are reversed. The order for the correction of the findings is affirmed.
Harrison, J., McFarland, J., and Garoutte, J., concurred. *Page 578