Anderson v. Joseph

VAN DYKE, P. J.

Respondents have moved to dismiss the appeal in each of the above entitled cases.

In the ease of

Anderson

v.

Joseph et al., 3 Civil No. 9091,

Anderson obtained a judgment against the Joseph Brothers in the sum of $4,694.05 and they appealed. On December 19, 1955, this court filed its decision affirming the judgment. (See

Anderson

v.

Joseph,

136 Cal.App.2d 382 [288 P.2d 524].) Prior thereto on October 10, 1955, counsel for appellant Anderson, apparently responding to oral suggestions of counsel for appellants, hereinafter called Joseph Brothers, wrote a letter to their counsel stating that Anderson would take in settlement the principal amount of the judgment plus costs or a total of $4,764.05 and would waive the accumulated interest. On October 17th counsel for Joseph Brothers replied, stating that his clients had accepted the offer to settle and that he had written to obtain a draft payable to Anderson and his counsel in full satisfaction of the judgment. He stated

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that he was writing to this court advising it that the appeal was being disposed of by settlement. Apparently there was some hiatus in these arrangements and this court filed its decision affirming the judgment. Thereupon respondent refused to abide by the settlement agreement and demanded full payment of judgment and interest. Thereafter and because of certain proceedings which will be hereinafter related, the clerk of the trial court entered a satisfaction of the judgment and appellant Anderson has noticed an appeal from the act of the clerk in filing the satisfaction. A motion has been made to dismiss this appeal and it must be granted. No appeal lies from the act of the clerk in satisfying a judgment of record. Where a satisfaction of judgment has been erroneously entered, the remedy is for the judgment holder either to move in the case in which the judgment was rendered for an order cancelling the entry of satisfaction or to commence an independent action in equity.