Clark v. Austin

Vanclief, C. — Action to foreclose a mortgage. The defendants Austin, E. K. Clarke, and Bruce Oavitt were jointly liable to the plaintiffs for the mortgage debt, but as between each other, Austin was bound to pay only one half, Clarke one third, and Oavitt one sixth. Before judgment, Clarke paid his portion, — one third of the debt, viz., $4,065,—and a decree, of foreclosure passed for the unpaid portion of the debt, ordering a sale of the mortgaged premises, and that a joint judgment be docketed against Austin, Clarke, and Oavitt for any deficiency of proceeds of sale to pay the debt. The sheriff sold the mortgaged property and returned a deficiency of $7,913, for which a judgment was docketed as per order of the court. It appears that on May 12, 1891, Clarke paid $4,025.60 of this judgment, in addition to his payment of one third of the whole debt before judgment, and, also, that full satisfaction of the judgment was entered on the same day, but it does not appear when or by whom the balance of the judgment was paid.

Clarke claimed the benefit of the judgment to enforce contribution or repayment from Austin to him of the full sum — $4,025.60 — paid by him on the judgment, under section 709 of the Code of Civil Procedure, and within ten days after his payment of this sum, filed with [285]the clerk of the court in which the judgment was docketed the following notice: —

“ NOTICE OF PAYMENT.

“To A. C. Williams, Esq., County Clerk of Fresno

County,

“You will please take notice that the defendant E. E. Clarke did on this twelfth day of May, 1891, pay to the plaintiffs $4,025.60, and that said payment was more than the due proportion of the judgment herein which said defendant Clarke ought to pay in the whole of said sum so paid, to wit, $4,025,60, and- that he claims that he has the right to contribution and repayment from the defendant Paul P. Austin, and that he is entitled to the benefit of the said judgment against said Austin in said sum of $4,025.60.

“ You are requested to enter this claim upon the judgment docket. Craig & Meredith,

“Attorneys for Defendant E. E. Clarke."

Thereupon the clerk made the following entry in the margin of docket of the judgment:—■

“ The defendant E. E. Clarke has filed with me notice of his claim to repayment from defendant Paul P. Austin of $4,025.60, being more than his due proportion, and he claims the benefit of the judgment herein against said Austin.