Hewitt v. Dean

Harrison, J. Motion on behalf of the appellants to set aside a sale of property made under the judgment at the instance of the respondent.

The court below rendered judgment in favor of the plaintiff and against the defendants for the sum of $3,149.60, the amount of the promissory note sued on, and $300 attorney’s fees, and directed that the lands mortgaged to secure the same be sold by the sheriff. From this judgment the defendants appealed to this court, but did not file an undertaking staying proceedings upon the judgment appealed from. After the appeal was taken, the plaintiff caused an order of sale to be issued upon the judgment, and at a sale thereunder, made August 8, 1890, purchased the mortgaged premises for the sum of three thousand dollars, which was credited upon the amount of the judgment. Upon the determination of the appeal in this court, the court below was directed “to modify the judgment by reducing the amount allowed for attorney’s fees to $125, as [619]of tlie date the judgment appealed from was entered,” and as so modified the judgment was to stand affirmed.

Section 957 of the Code of Civil Procedure provides: “When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order,” etc. This provision has been a part of the rule of procedure in this state since June, 1853. (Stats. 1853, p. 289; Practice Act, sec. 345.) In Farmer v. Rogers, 10 Cal. 335, the supreme court, construing this provision, say: “It applies only to those cases where the judgment operates upon specific property in such a manner that its title is not changed, as by directing the possession of real estate or the delivery of documents, or of particular personal property in the hands of the defendant, and the like.” In that case, however, the sale under the judgment appears to-have been made to parties other than the plaintiffs in the action, and in that respect differs from the case under consideration; but the language of the court is general in its statement of the application of the provision.

The provision of the code under wdiich the relief is sought authorizes this court to make restitution “ of all property and rights lost by the erroneous judgment,” in case the judgment appealed from is reversed or modified. The judgment in the present case was not reversed, nor was it modified to such an extent that the defendants can be said to have “ lost” any property or rights thereby. The judgment as originally entered was for the sum of $3,492.50, besides costs of suit, and it was modified by the judgment of this court by merely striking therefrom the sum of $175, and in other respects was affirmed, whereas the sum for which the property was sold was only $3,000.