Batchelder v. Brickell

Temple, J. —This is an action of ejectment, and the only question is, whether defendants succeeded in showing title under certain foreclosure proceedings in which Brickell, the principal defendant here, the others being his tenants, was plaintiff, and this plaintiff and her husband were defendants. In that case a decree was duly entered, and a sale of the mortgaged premises had, at which Brickell, the plaintiff in that action, became the purchaser.

After the sale the case was appealed to this court by . the defendants in that suit, but no stay bond was given, and pending that appeal, the sheriff’s deed was executed, and Brickell entered into possession under it. The [374]decision on the appeal in the foreclosure case is reported in 62 Cal. 623.

The conclusion of the court is as follows: —

“ It follows from the above that the court below erred in rendering a personal judgment against Mrs. Batch-elder on the note of June 1, 1874, and the interest on it, and the decree will be modified in that regard. In other respects the judgment is correct, and is affirmed.

“ Counsel for respondent will prepare a decree modified in accordance with the views herein expressed, and present it on notice to the chief justice of this court.” There was no personal judgment against Mrs. Batch-elder, and so far as we can ascertain, no such point was made on the appeal. The. decree, however, contained the usual provision for docketing judgment for any deficiency, and did direct such judgment to be docketed against Mrs. Batchelder. Of course it is this provision which is referred to as a personal judgment against Mrs. Batchelder, and the intent that the decree shall stand except as to that provision is quite plain.

The direction to respondents’ counsel to prepare a decree modified in accordance with the views expressed meant simply to write out the decree as modified, more plainly to indicate to the court below the modification intended. Under the circumstances, it cannot be justly claimed that it was intended to vacate the decree or set it aside. A contrary intent is expressly stated. “ The decree will be modified in that regard. In other respects the judgment is correct, and is affirmed.”

It was not directed that the modified decree should be submitted to the court for approval, and apparently it was not. This supports the idea that it was not intended to constitute a new decree.