Taylor v. Ellenberger

CHIPMAN, C. There are three appeals in this case: First, from an order denying defendants’ motion “to set aside and vacate the sale of the mortgaged premises de[727]scribed in plaintiffs’ complaint” (this motion is made on the ground that on a former appeal of the case to this court [128 Cal. 411, 60 Pac. 1034] the judgment of foreclosure was modified by directing a different sale from that provided in the original judgment, namely, a separate sale of the real and personal property); second, from the modified judgment ; and, third, from the order granting plaintiffs’ motion for a writ of assistance. By stipulation the three appeals are included in, and to be heard upon, one transcript.

The original decree of foreclosure was entered February 27, 1899, and sale thereunder was ordered to be made by a commissioner named in the decree May 24, 1899, and he made the sale on July 1, 1899, in accordance with the order, and on July 3, 1900, he executed and delivered his deed to plaintiffs, as purchasers at the sale. It does not appear at what date the first appeal was taken, but it does' appear that no stay bond was given, and hence there was nothing to prevent the sale from taking place. On the twenty-eighth day of April, 1900, the decision of this court was filed, directing certain modifications of the amount found to be due on the mortgage debt, and also further modifying the decree by directing the trial court to “adjudicate separately the amounts due on the real estate described in the first two mortgages and those due on the chattel mortgage, and directing the sale of said real estate and personal property separately, each for the amount due on it.....And, as so modified, the judgment should stand affirmed.” The modified decree was entered June 20, 1900. The real estate, however, had already been sold, and was purchased by plaintiffs, as above stated, but the personal property was not sold. It is this sale which defendants seek to set aside by their first motion. Defendants have shown no injury resulting to them from the sale. The restitution which the court may make under section 957 of the Code of Civil Procedure, when the judgment or order is reversed or modified, is not mandatory, but rests in the discretion of the court: Yndart v. Den, 125 Cal. 85, 57 Pac. 761. The only showing made by defendants in support of the motion was that this court had modified the original decree; but no facts are set forth in the affidavit, nor does anything elsewhere appear, from which it can be seen that any injury has come to defendants by the sale, or that they would be [728]