Eppinger v. Scott

GRAY, C.

A demurrer to the second amended complaint was sustained, and, plaintiff failing to further amend, defendant had judgment from which the plaintiff appeals. .

The said complaint contained two counts. In the first is set forth, in substance, that in a claim and delivery suit commenced by plaintiffs against defendant judgment had gone in defendant’s favor for the return to him of twenty-five thousand trays and three hundred sweat-boxes, or eighteen hundred and eighty-five dollars, the value thereof, in case a return could not be had, together with costs amounting to sixty-three dollars and fifty cents; that plaintiffs appealed from said judgment, and the same was affirmed by this court; that on the filing of the

remittitur

in the court below plaintiffs tendered to defendant and

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deposited with the clerk of the court for defendant eighty-four dollars and fifty cents, being the amount of the costs with interest and accrued costs in said action; that said judgment, except as to the costs, contained no definite description of any property to be returned by plaintiffs, and decreed only that twenty-five thousand trays and three hundred • sweat-boxes should be returned, without specifying the character and nature thereof, and is incapable and impossible of enforcement by reason of the uncertainty thereof; that notwithstanding said uncertainty the defendant caused an execution to issue upon the money judgment in said abtion and levied upon the property of said plaintiffs; that thereafter plaintiffs moved the superior court to recall said execution and to order said property to be released and to direct the clerk to enter satisfaction of the judgment, which motion was denied by order of said court, and from said order plaintiffs appealed; that said appeal is still pending and undetermined, and plaintiffs have no legal remedy to stay proceedings in the premises pending the final determination of said appeal.

The second count of the complaint is practically a repetition of the first, except that instead of setting forth and relying on the uncertainty of the judgment it alleges as follows: “That also on said thirteenth day of June, 1896, said plaintiffs tendered to said defendant and offered to return and deliver to him the twenty-five thousand trays and three hundred sweat-boxes, as specified in said judgment, and then and there and thereby to comply with the terms of said judgment in that behalf and in satisfaction thereof; and that plaintiffs have been ever since, and are now, ready and willing to return to said defendant said twenty-five thousand trays and three hundred sweat-boxes, and to comply in every particular with the terms and requirements of said judgment; that defendant then and there refused, and ever since has refused, and does still refuse, to accept said sum of eighty-four dollars and fifty cents and said trays and sweat-boxes, or any thereof, or to satisfy or cause to be satisfied said judgment aforesaid, and by reason of such refusal, and not otherwise, said judgment still remains unsatisfied.”