Barnhart v. Edwards

VAN DYKE, J.

After further consideration of this case we have come to the same conclusion arrived at in Department One, and adopt the opinion therein filed July 3, 1899, as the opinion of the court in Bank, as follows:

1. "Upon the trial of this cause the court found that the plaintiff was entitled to judgment in his favor in the sum of $7,-668.12, and that the same was a lien upon the lands described in the complaint, and directed a sale thereof. The findings of fact were filed March 16, 1895, and judgment thereon entered March 18, 1895. An appeal from the judgment was dismissed by this court March 6, 1896

(Barnhart v. Edwards,

111 Cal. 428), and the

remittitur

thereon filed in the superior court April 22, 1896. Upon an appeal from the order denying a new trial this court made an order December 28, 1896, directing the superior court to deduct certain items from the amount which it found due to the plaintiff, with whatever interest had been allowed for those items, and to make a corresponding amendment

[574]

of its conclusions of law, and added: “The order denying a new trial will thereupon he affirmed. Judgment will then be entered in accordance with the findings thus corrected.” After receiving the

remittitur

containing this direction the superior court, upon motion of the respondent herein, made an order September 3, 1897, correcting its finding of fact by deducting therefrom the sum of $2,109.43—the amount of said items and interest thereon—and amended its conclusion of law to read as follows, viz.: “That plaintiff is entitled to judgment against defendant B. L. Edwards, as administrator of the estate of E. G. Yancil, deceased, in the sum of $5,558.69; that said sum is a valid, existing lien upon the lands and premises in plaintiff’s complaint described, and is secured by the mortgage mentioned in said complaint.” On the same day the court caused to be entered a “corrected judgment and decree,” reciting therein that, having “corrected its findings and amended its conclusions of law” as directed by this court, it “proceeds to enter judgment in accordance with the findings as thus corrected,” and thereupon ordered and decreed a sale of the mortgaged premises, and that out of the proceeds of said sale the sheriff pay to the plaintiff the sum of $5,558.69, “the amount now due for principal and interest upon the said debt and mortgage in the complaint and findings mentioned, with interest thereon at the rate of seven per cent per annum from the date of this decree.” From the judgment thus entered an appeal was taken by the plaintiff September 15, 1897.