Haug v. Superior Court

SCOTT, J.,

pro tem.

Petitioners herein brought an action entitled

Haug

v.

Carrie A. Fairbanks

(L. A. Co. 342853) asking that a deed by them to said defendant, which was absolute in form, be declared by the trial court to be a conveyance transferring title to the property therein described to defendant in trust for plaintiffs. Defendant answered praying that the deed be held absolute and for general relief. Judgment for defendant was rendered, in terms hereinafter discussed, decreeing the deed to be a mortgage. The trial court later made an order

nunc pro tunc

to amend the judgment as originally signed. This proceeding in

certiorari

is to review the said

nunc pro tunc

order. After the said order and pursuant to the amended judgment, the court ordered a sale of the property as upon a mortgage foreclosure, and the prohibition proceedings herein were instituted to keep the court from carrying into effect its purpose of having the property thus sold.

At the conclusion of the trial the court found that said defendant had loaned certain money to plaintiffs and the latter had given defendant a deed to the property. In its judgment the court required defendant to execute a deed conveying the property to plaintiffs and ordered the latter to execute notes to defendant for the amount of the latter’s loan to them and to execute mortgages on the said property to defendant to secure the same. In the judgment as originally signed no alternative action was decreed by the court in the event either party failed or refused to

[549]

execute and deliver the instruments as required. No motion for new trial was made and no appeal was taken from that judgment as originally signed and entered.

About a year after entry of the judgment as originally signed, the trial court made the said order,