Cross v. Zellerbach

THORNTON, J. This cause has been before this court twice on appeal, and the judgment on the first appeal will be found reported in 55 Cal., at page 433 et seq. (under the title of Sigourney v. Zellerbach), and on the second appeal in 63 Cal., at page 635 [under the title of Cross v. Zellerbach] . On the appeal last referred to the case bears the same title as the one before us; Sigourney having since the commencement of the action departed this life, and Cross having been afterward appointed his administrator and been substituted in place of Sigourney.

The action was originally brought to foreclose a mortgage executed to the plaintiff Sigourney by a corporation called the Eureka Lake Company. The parties to the cause were the present plaintiff’s intestate, the defendants Eureka Lake & Yuba Canal Company, and Zellerbach. It was heard on the pleadings and findings and decree of the court below: See statement, 63 Cal. 636. The judgment in that ease was reversed for reasons stated in the opinion above referred to. On the return of the cause to the court a quo, the plaintiff filed in that court a supplemental complaint, which was answered by Zellerbach and the Eureka Lake & Yuba Canal Company. This company filed also a cross-complaint, -to which a demurrer was interposed by Zellerbach. This demurrer was sustained, and from the judgment in the case, which was in favor of the plaintiff and against the company, an appeal was prosecuted by the defendant company, on which appeal the main question presented was the ruling of the court a quo on this demurrer. On this appeal the ruling of the court upon this demurrer was held erroneous and the judgment reversed. The facts before the court for consideration on this last appeal are also before us on the present one. We refer to the facts on which the ease of the plaintiff and the defendant corporation rests. In the opinion filed in this last appeal in 63 Cal. this court, after fully stating the facts, remarked: “If the facts be as stated, we see no reason why a decree should not be entered substantially as prayed [580]for in both, the supplemental and cross-complaints, to the effect that the plaintiff retain and hold the money so paid in full satisfaction of his demand in the action, and that he be adjudged to satisfy of record and to cancel and deliver up the note and mortgage described in the original complaint, and to cancel and deliver up to Zellerbaeh the forty thousand dollar and ten thousand dollar notes executed by him, and that the twelve thousand dollar note executed to Sigourney by the Eureka Lake Water Company, together with the mortgage executed by that company to Sigourney and Mercellus, be decreed to be fully satisfied”: 63 Cal. 642.