First National Bank of Modesto v. Wakefield

ANGELLOTTI, J.

Motion of defendants to dismiss appeal from judgment, upon the ground that plaintiff “has abandoned and forfeited its said appeal and the whole thereof, and has' lost the right to said appeal and the further prosecution thereof, and is estopped from further prosecuting said appeal.”

The plaintiff bank commenced an ordinary action for the foreclosnre of a mortgage given by Joseph Knowles to secure a note against defendant administrator and the heirs of decedent, waiving all recourse against other property of the estate. The defendants answering, alleged, by way of counterclaim, that the plaintiff had wrongfully applied one thousand dollars, on deposit with it to the credit of said Knowles, on account of the payment of said note, and asked judgment therefor. The action was tried and judgment

[562]

given in favor of plaintiff for the foreclosure of the mortgage, the court finding that the sum of $4,046.24 was due thereon. The court, in the same judgment, finding that the plaintiff had wrongfully applied the one thousand dollars on deposit with it to the credit of Knowles, on said secured note, as alleged, ordered that the defendant administrator recover from plaintiff for the estate of Knowles the said sum of one thousand dollars, with interest.

Plaintiff appealed from the judgment in favor of the defendant administrator for one thousand dollars, and from the judgment in its favor in so far as it adjudged that there was due plaintiff $4,046.24, and that said sum of '$4,046.24 was a valid lien upon the land covered by the mortgage, and in so far as it directed the sheriff to pay plaintiff out of the proceeds of the foreclosure sale the said sum of $4,046.24.

So far as the judgment in its favor was concerned, plaintiff by its appeal was seeking to review only those portions thereof fixing the amount secured by the lien of the mortgage, its claim undoubtedly being that the one thousand dollars on deposit had been by it properly applied on account of the mortgage debt, that it should be allowed to retain the same as a payment on such debt, and that the amount adjudged due on the mortgage debt was therefore excessive in the sum of .one thousand dollars. The plaintiff some time thereafter proceeded to enforce the portion of the judgment decreeing a foreclosure of the mortgage. An order of sale was procured, and the sheriff thereunder sold the mortgaged property, the plaintiff becoming the purchaser for the sum of two thousand dollars. In due time plaintiff received the sheriff’s deed for the property and took possession. No claim is made that the mortgaged property did not bring its full value at the sheriff’s sale, and it does not appear that defendants moved to set aside the sale for any cause. Under these circumstances defendants claim that plaintiff, is estopped from further prosecuting its appeal, relying upon the well-established rule that the right to accept the fruits of a judgment or order and the right to appeal therefrom are not concurrent, but are wholly inconsistent, and an election of either is a waiver and renunciation of the other.