Cantrall v. Waterman

CONREY, P. J.

Alonzo Leachman commenced this action against respondents Waterman and Ruff and against the executrix of the will of C. A. Mohrenstecher, deceased, and George M. Cage, for renewal of a judgment entered on the twentieth day of July, 1914, against G. A. Mohrenstecher, Waterman, Ruff, and Cage; and, as appears by the evidence, also against one E. S. Finney. Leachman appealed from the judgment entered in favor of respondents. Since his death, pending the appeal, the administratrix of his estate has been substituted as plaintiff and appellant.

In the present action, judgment by default was entered against the executrix of the will of Mohrenstecher. That judgment is now final.

(Leachman

v.

Cage,

50 Cal. App. 241 [194 Pac. 750].) The record shows that in this action defendant Cage has not been served with summons and has not appeared. It follows that Waterman and Ruff alone are respondents to this appeal.

[186]

The original judgment amounted to $1,061. The plaintiff alleged that no part of said judgment has been paid, except the sum of $500 paid on or about August 11, 1919. Respondents contend that there was also paid on account of the judgment of July 20, 1914, by the estate of Mohrenstecher, the sum of $400; also that on payment of said sum of $500, which was paid by Finney, the judgment was satisfied in full. Appellant contends that said sum of $400 was paid by the estate of Mohrenstecher not on account of the judgment, but under a separate agreement for release of property of the estate from the lien of the judgment.

The court found that the payment by the Mohrenstecher estate was made on account of the judgment. Appellant contends that the evidence is insufficient to sustain that finding. We are of the opinion that the evidence -is sufficient to sustain the finding. Although Leachman testified that he did not receive said sum of $400 to apply on the judgment, he admitted that his attorney who was acting for him in connection with these transactions stated to him in the presence of Mr. Finney “that I had already received $400 on that judgment, and therefore by the receipt of this $500. from Mr. Finney it was a good settlement of the judgment.” In addition to this Mrs. Finney testified that in a conversation with the plaintiff Leachman during the pendency of this action and relating to its subject matter, the plaintiff stated “that as Mi*. Mohrenstecher and Mr. Finney had both made substantial payments he thought that Doctor Ruff and myself should pay the balance. ” From the evidence thus introduced, we think the court was warranted in determining that the Mohrenstecher payment was made on account of the judgment.