Holmes v. Williams

WOOD (Fred B.), J.

Plaintiffs recovered judgment against the defendants in the sum of $3,200 for the value of a certain automobile.

Upon the judgment roll appeal of defendant Cyril Saunders, the judgment was reversed upon the ground that the record, including the complaint and the findings of fact, demonstrated that plaintiffs’ cause of action depended upon their success in a lottery, “which is a criminal offense,” and therefore “the doors of the courts are closed to them. (6 Cal. Jur., Contracts, §106, pp. 150-152.) ”

(Holmes

v.

Saunders,

114 Cal.App.2d 389, 391 [250 P.2d 269].)

While the former appeal was pending, property of defendant Cyril Saunders was sold pursuant to writ of execution issued upon the judgment. The sheriff’s return shows that the net receipts of the sale which he applied in partial satisfaction of the writ amounted to $1,717.32.

After the decision upon the former appeal became final, defendant Saunders moved the trial court for judgment

[379]

against plaintiffs for costs expended by him and for restitution of the moneys received by plaintiffs as proceeds of the execution sale. The court by judgment and order in writing awarded Saunders $483.18 to cover his costs but denied restitution. Saunders has appealed. There being no basis for disturbing the portion of the judgment and order which awarded costs, that portion should be affirmed. We will consider the portion thereof which denied restitution.

We find the applicable principles of law stated in

Schubert

v.

Bates,

30 Cal.2d 785 [185 P.2d 793] : “The power of the appellate courts to restore benefits lost pursuant to a judgment modified or reversed exists by virtue of sections 957 and 988f of the Code of Civil Procedure. But the power of a court whose order or judgment has been reversed to order restoration after reversal is' inherent in that court. [Citations.] ” (P. 789.) “The exercise of power to restore benefits after reversal has been declared to be discretionary. [Citations.] ” (P. 791.) “In