Phillips v. Isham

VAN DYKE, J.

Appellants brought an action to quiet title to a small parcel of land claimed by them to be part of a lot they owned, and respecting which they alleged that respondents asserted title. It appeared that respondents owned the contiguous lot and the dispute involved certain encroachments by reason of their having located a carport and some hedge partially over the true line. The trial court rendered a judgment adjudging that appellants were in fact the owners of the property described in their complaint, but ordered that if respondents should within a limited time pay to appellants the sum of $250 then it would be the judgment of the court that they were the owners of the disputed parcel. If they should not so make that payment then appellants’ title would be quieted and respondents would be compelled to remove the encroachments and restore possession to appellants. Counsel for appellants has his office in Fresno and counsel for respondents have their office in Sacramento. Within the time limited counsel for respondents placed $250 in currency in an envelope, addressed the same to counsel for appellants and forwarded it to him by registered mail. They also enclosed a letter stating as follows: “In accordance with the Judgment of the above-entitled Court made on December 14th, 1950, we enclose herewith the sum of $250.00, as thereon ordered to be paid from Defendants to Plaintiffs therein.” The envelope arrived upon the desk of appellants’ counsel, having been receipted for by his secretary in ordinary course. Thereupon he deposited the currency in his attorney’s trust account and wrote to respondents’ counsel as follows: “This is to acknowledge receipt of your registered letter together with the $250.00 enclosed therein representing payment as ordered by the court in the above matter. I have deposited this money in my trustee account and will hold the same pending the decision of the appeal in this case. ’ ’ Under the same date he forwarded notice of appeal to the clerk of the trial court and on the day following forwarded a copy thereof to counsel for the respondents. No reply was made by them either to the letter concerning the

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$250 or to that enclosing copy of notice of appeal. Appellants proceeded to perfect their appeal, but before the transcripts were filed and on February 23, 1951, some two months after the exchange of the correspondence we have referred to, respondents filed in the Supreme Court, to which the appeal had been taken, their notice of motion to dismiss. Both the appeal and the motion were transferred to this court, along with the record on appeal which, on March 27th, had been filed in the Supreme Court.