Applegaeth v. Dean

Foote, C. — Action to recover $504.75 paid upon a judgment in excess of the sum declared actually due upon the same as subsequently modified by the court.

A demurrer was filed to the complaint in the action and overruled. Defendant .declining to answer over, judgment passed for the plaintiff, and the former appeals.

It is admitted by the pleadings herein that upon the thirty-first day of December, 1881, the defendant in the present action obtained (in another .suit brought for the foreclosure of a mortgage against the plaintiff, then defendant), in the Superior Court of Merced County, a judgment for $2,317.26, and $253.52 costs and attorney’s fees. That on March 6, 1882, the mortgaged property was sold at sheriff’s sale for $2,600, for the purpose of satisfying said judgment. That said last-mentioned sum was not sufficient by $125,53 to satisfy that judgment, and a judgment for the deficiency was docketed. That at said sheriff’s sale Sidney Dean, the present defendant, then plaintiff, became the purchaser of the mortgaged premises; that thereafter on the fourth day of September, 1882, the plaintiff in this action, then defendant, for the purpose of redeeming said property from the said Sidney Dean, paid to the sheriff for him at the county of Merced the sum of two thousand six hundred dollars, with two per cent per month thereon in addition, and paid the said Dean also the amount of the judgment docketed, as aforesaid; that all of said sums of money so paid were on that same day had and received by the said Dean. That on the twenty-third day of December, 1882, an appeal from said judgment was taken by the present plaintiff [493]to this court, and that on the eighteenth day of July, 1884, this court modified the judgment so appealed from; that a remittitur was sent down to the Superior Court of Merced County, and on the second day of September, 1884, that tribunal, in obedience thereto, modified its former judgment, by substituting for the sum of $2,317.26, as the amount of the principal and interest due and owing thereon, the sum of $1,907.52, and by substituting for the sum of $253.52, the amount of costs and attorney’s fees as aforesaid, the sum- of $212.55. That before the commencement of this action, viz., on the fourth day of September, 1884, the plaintiff demanded of said Dean the sum of $450.71, as paid in excess of the amount due under the modified judgment, together with interest and percentage upon said sum, as paid by plaintiff as aforesaid, amounting in the aggregate to the sum of $504.75, which payment, so demanded, was by the defendant refused, and which he still refuses to pay.