Mulford v. Estudillo
Before: Rhodes
Synopsis
Judgment in Supreme Court.—If the plaintiff admits on the pleadings that he never had a cause of action against the defendant, the Supreme Court will reverse a judgment in his favor, and may either order a judgment in defendant's favor in the Court below, or may remand the cause for further proceedings.
When Answer is Considered Filed.—If the plaintiff amends his complaint, and the defendant obtains an order to have his answer on file stand as the answer to the amended complaint, the answer is to be treated as if filed when the order is made.
Opinion of Supreme Court on Appeal.—The presumption is, that all the facts in a record, hearing on the points decided, have received due consideration by the Supreme Court, whether all, or a part, or none of those facts are mentioned in the opinion.
Uaw of a Case.—The decision of the Supreme Court becomes the law of the case on a second appeal, whether all, or a part, or none, of the facts hearing on the points decided are mentioned in the opinion.
Idem.—The discussion and determination, in an opinion of the Supreme Court, of other points not tending to the decision of the point upon which the appeal was disposed of, must be regarded as dicta, and not as the law of the case.
Admission of Facts on the Record.—When an ultimate fact is admitted on the record, probative facts tending to establish, modify, or overcome it, will not he considered by the Court. „
Judgment on Return of Mandate of Appellate Court.—If, on an appeal, the Supreme Court of the United States simply affirm the judgment of the Circuit Court, the judgment thus affirmed becomes final, and the Circuit Court has no jurisdiction on the return of the mandate of the Supreme Court to render a new judgment.
Satisfaction of Judgment by levy of Execution.—If, bn the return of a mandate from the Supreme Court of the United States to the Circuit Court, affirming the judgment of the Circuit Court, a new judgment is rendered by the Circuit Court, the issuance of an execution on the new judgment and the levy on property sufficient to satisfy it is not a satisfaction of the judgment or costs.
Idem.—If, on the return of a mandate from the Supreme Court affirming the judgment of a Circuit Court, a new judgment is rendered by the Circuit Court, and an execution is issued on it, and a levy is made on sufficient property to satisfy it, and the Circuit Court then sets aside the new judgment and directs the old one to be enforced, the levy is not a satisfaction of the first judgment or the costs.
Satisfaction of Judgment.—If, after an execution has been- levied on sufficient property to satisfy a judgment, the Court orders that the judgment he not enforced, the order releases the levy, and it will not have the effect of satisfying the judgment.
By the Court, Rhodes, J.: The first inquiry is, what was determined by this Court on the last appeal in this case ? The case is reported in 23 Cal. 94. The plaintiff alleged in his complaint, that while the case of Boyreau v. Campbell was pending in the Supreme Court of the United States, the defendants executed to the plaintiff and others the instrument in suit—which the parties call a bond of indemnity—by which the makers of the bond agreed to indemnify the obligees and their sureties upon the writ of error bond against all damages and costs recovered or to be recovered in the case of Boyreau v. Campbell; that the judgment in that case was affirmed by the Supreme Court and remanded to the Circuit Court for execution; that Bray, one of the sureties upon the writ of error bond, paid the judgment for costs, execution therefor having been issued, and after-wards recovered judgment for the same against the plaintiff, and that the plaintiff paid the latter judgment. The defendants in their answer, after denying several of the allegations of the complaint, set up as a defense that before the payment by Bray, the execution had been levied upon sufficient property of Kennedy, a defendant in that case, but not a party to the indemnity bond, to satisfy the execution, and that the property was in the custody of the Marshal at the time Bray made Ms payment.
On appeal, the defendants contended that the above defense was a complete answer to the action, by way of confession and avoidance, that the matter of avoidance constituted new matter within the meaning of the Practice Act, and that as the plaintiff had not replied to it—as was then required by the Act—it stood as admitted on the record. The Court held [136]with the defendants, that the facts set forth in the answer constituted new matter, and were to be taken as true, because the plaintiff failed to reply to them. The decision of that point virtually ended the cause on appeal; for if the plaintiff admits on the pleadings facts showing that he never had a cause of action against the defendants on the bond of indemnity, the judgment in his favor must of necessity be reversed. The Court might thereupon have ordered judgment for the defendants; or, if in their opinion the circumstances of the case required it, have remanded the cause for further proceedings. The Court pursued the latter course, and both parties agree that the cause was remanded for a new trial.
Upon the return of the cause to the District Court, the plaintiff obtained leave to amend the complaint, and it was accordingly amended; and upon motion of defendants their answer on file was allowed to stand as their answer to the amended complaint. The answer is to be treated as if it had been then filed, and at that time no replication was required by the Practice Act. The amendment amounted to this: that the judgment of the Circuit Court was not paid, satisfied, or otherwise discharged, when Bray, a surety upon the writ of error bond, paid to the judgment plaintiff the amount of the judgment. That averment 'is material; for if the judgment did not in fact then remain unpaid and unsatisfied, no cause of action accrued to Bray because of his having made the payment. The answer having been in effect filed as the answer to the amended complaint, and no replication thereto being required, the new matter therein contained was deemed to be controverted by the plaintiff, and the burden of proof was cast on the defendants.
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