*1 139 оf 137 and sections severed; has been after construed; similarly be analogous and should are Civil Code must involved decree here construction, that under lie. will prohibition final; that writ be held to Schauer, J., concurred. rehearing July 24, was denied application for Petitioner’s rehearing. for Schauer, J., voted Carter, J.,
1946. 25, 1946.] 5719. In Bank. No. [ Sac. COM- TRUST AMERICAN BEELER, Appellant, v. C. W. Respondent. (a Corporation), PANY Oliver J. Carter and Dudley McGregor G. Appellant. Brobeck, Phleger & Harrison and M. B. for Respon- Plant dent.
SPENCE, J.This is an from a decree of fore *2 closure and sale made outgrowth as the previous litigation parties between (Beeler v. American Co., Trust Cal.2d propriety The of the allowance of inter obligation est on the established prior judgment is the point sole here in issue. appears As findings from the ease, judgment in this in the original action was entered on 1939, whereby November deed absolute was declared to be an equitable mortgage of certain property; real plaintiff’s indebtedness to defendant was fixed at the sum of $60,000, plus the sum of for $477.88 taxes advanced, the former sum to bear interest at the rate per of 5 per cent annum.and the latter sum to bear interest at the per rate of 7 per cent judg- annum from the date ; provision ment and was made if plaintiff fail should pay such sums and days interest within 60 upon the date which final, might became apply for a deсree of by defendant, foreclosure and sale. appeal On original court modified the to allow defendant the additional $430, making sum of $907.88, total of for taxes As advanced. so modified the on was affirmed April 3, 1944, and the May 6, remittitur was filed on 1944. defendant, during Meanwhile pendency appeal, of the made additional taxes, advances for for reimbursement was secured under judgment declaring the terms of the plain- right conveyance tiff’s to a satisfaction of the indebted- constituting ness against a lien property. Plaintiff failed payments to make the days within the from the date the judgment became applied final. Defendant thereaftеr for on 14,1944, obtained November after hearing, due the de- cree of foreclosure and sale from appeal which this is taken.
Appellant objects to the decree’s schedule of his interest computed which was following basis: $60,000 as the sum principal obligation, plus interest 5 per annum, at cent per advance, plus $907.88 as tax per interest at 7 cent per annum, accruing both amounts interest from the judgment, 1939; date of the November additional sums for judgment, taxes advanced since the interest from the date of per at the rate cent after deduc- $81,490.99, making all, a total annum; in per appellant, favor undisputed credits in tion certain bearing interest at mortgage and by the amount secured from date of decree. per per annum rate of 7 cent original under the sums position that said appellant’s It is judg- until the date not bear should record nor the 3, 1944. Neither final—May ment became position. supports appellant’s applicable law and modified rendered original judgment as on the date from its expressly for interest provided stated. $907.88, as above $60,000 and respective sums of of inter propriety previous consideration This court’s mortgage in adjudicated est accrual with reference to solely to allowance $60,000 such debtedness of wаs directed parties’ due under from the date amount became the accredited agreement, finding, trial under court’s evidence, payment prior to such due rejected that a tender of obligation, stopped date on the running supra, Co., (Beeler affirmed. Cal.2d American Trust 28-29.) By interest as car provisions such decision original judgment ried in nowise disturbed. On were contrary, limited the affirming judgment, this court *3 substituting increased single point modification to the of the figure 29) for in connection (24 the tax advance Cal.2d right expressly with such that said reimbursement, of stated “legal amount . . from the $907.88 of should bear 27.) entry (24 date of The modifica of the decree.” Cal.2d tion, original entry course, of of the related back the date 572, 575 judgment. of 128 (Barnhart Edwards, v. Cal. 176].) [61 payment of
Appellant only offer concedes that litiga original prior made of the was that to the institution judgment, resulting in tion. Its full effect was determined related to accordingly expressly the interest accrual was is judgment now entry adjudication. the date Said of such open not final, of interest are provisions for allowance 1908.) Proe., Con appeal. (Code attack Civ. § interlocutory an trary appellant’s claim, in no sense it was foreclosure provision possible decree reason of future for Bather it “was proceedings of the satisfaction complete rights parties” a of the and final determination of the because controversy less so then in and it became “none the reserved branch future independent consideration [an] 438 Mortgage Co., Bond & Coast (Perry v. West
of the case.” 279].) 557, Cal.App. [29 regardless argues that of the terms of Appellant next operated therefrom original judgment, appeal it obligation running until the be the interest from stop self to v. court—Beeler American under decision of this came due In supra, 24 he Co., Trust Cal.2d 1. connection asserts appeal, per defendant bank during pendency that property ownership claim of sisted in its absolute adjudi recognize rights under the terms refused to his futile for mortgage; that it therefore would have been cated prescribed payment judgment; in the him to have offered support claim will not of in and that circumstances these finality prior terest on to the date of de cision, 3, appeal law is An May 1944. But the otherwise. stop interest, running does to obtain not such (Ferrea obligor result the must make sufficient tender. 308].) Tubbs, Appellant Cal. makes no or made claim a tender offer of was after merely entry pending appeal, but assumes rejected if assumption, that it have been made. In would such appellant indulges in pure speculation olaim as to a easily could have been demonstrated as a matter fact. only way appellant in which could have avoided or terminated during liability pendency his appeal (Western Lithograph have made an actual tender. Co. v. Producers, Cal.App. Vanomar P. analogous Otherwise, require considerations would proper money case which the amount of might on appeal, be at issue a tender amount admitted owing unnecessary to be be would because presumably rejected running would be and the of interest should therefore automatically stopped until decision becomes final appellate review. The impropriety has been considered those a monejr cases where amount, reduced in in its modified form nevertheless bears interest original date of (Barnhart —not from the date of modification. v. Edwards, *4 supra, 572, 128 575; Sand, Cal. Niles Gravel & Co., Rock v. Muir, Cal.App. 55 539, 541 1009].) P. And even on [203 contract claim obligee where an demands more than is later found by the court owing to be parties’ under the agreement, obligor is required nevertheless to make a tender or offer of in order stop running to of interest on
439 (Western Lithograph v. Van obligation adjudicated. Co. 648.) Producers, supra, Cal.App. 644, 62 omar rendering Moreover, court, in the decree fоre the trial of attack, here under did closure its interest calculations with mere not infer from the facts before it that the of payment the former established that tender have been futile and constituted a waiver of claim would obligation appellate adjudicated pending oh the Appellant, application, in to the foreclosure review. answer any specific allegation futility did make as to not waiver tender, allegations might regarded but all his bearing upon Thus, contention found be untrue. were against appellant ability the trial court found on his claim of willingness allegation pay connection with his 6, (the original judgment) “sinсe November 1939 date of the continuously . . . has refused in accept substantiating debtedness due”—essential considerations payment. (Civ. Code, 1495.) an burden, offer of § course, plead prove appellant was the circum Stowell, (Caspar stances waiver. Lumber Co. 37 v. Cal. App.2d 58, 744].) circumstances, Under the [98 resolving finding trial court’s of the issue in its that interest owing adjudicated on the accordance original judgment binding with the terms is on this appeal. (Northwestern Co., P. v. C. Co. Atlantic P. C. 308, 47].) rule that Cal. P. While the “a tender [163 necessary vendee not where the conduct or declarations unavailing” (Hoppin are v. such as show that it would be Munsey, 185 398]) general Cal. is true aas principle establishing futility of an contract law performance, offer of an not as a declara appeal is classifiable tion of on the basis to constitute a waiver same Proe., (Code provided interest on a law Civ. 1033) dispense formality of tender to nor does it § adjudicated obligation. stop running the interest on the (Ferrea Tubbs, Cal. challenge
Appellant’s final foreclosure point decree of interest on provision relates the allowance respondent’s respective advances for taxes from the dates payment. findings, original judgment quoted As in the provided sixty days from and after “plaintiff, within finаl, the date this becomes shall together due, the said sums and interest above found to be *5 440 by taxes, any, if
with advances made defendant for sub sequent The prior trial.” advances taxes made trial—$907.88, noted—expressly “legal as above carried (Beeler . . from the date of of the decree.” Co., supra, 1, 27.) 24 Respondent v. American Trust Cal.2d on the same basis would be entitled to reimbursement for sub during sequent pendency appeal, for taxes advances of the original judgment interpretation and reasonable with regardless point to that of its reference would so indicate In provide expressly for the accrual of failure to interest. judgment, rеspondent’s fact, even without mention at all to protect for taxes its own interest would have be advances (Civ. mortgage. the indebtedness secured part come 2876; Hensley, Weinreich 656 Code, v. 121 Cal. [54 § 254]; O’Brien, 183]; 219 780 McMillan v. Cal. P.2d [29 Hanrahan, 853].) Cal.App.2d 32, 37 P.2d Diehl v. [155 agreement advances, express And such the absence contrary, legal bear interest provision at rate Johnson, (Semi-Tropic Assn. v. payment. S. Cal. date 639, 642 provides payments for interest The decree of foreclosure original as con- accord with the terms strict (Beeler Amrican Trust prior opinion in this court’s v. sidered 1), af- Co., supra, accordingly, 24 Cal.2d the decree is firmed. Shenk, J., Edmonds, J., Traynor, J., and
Gibson, J.,C. Dooling, tern., pro. J. concurred.
SCHAUER, J. I dissent. In this from decree of exception judgment only foreclosure is taken to insofar charges with interest the debt due during period for a defendant failed defendant which the comply refused its conduct precluded complying or excused the therewith. controlling essential facts and the herein were
The law finally adjudicated in the Beeler American basic case of (1944), no 583], Trust Co. Cal.2d and are longer subject dispute. In 1937 defendant de agreement whereby plaintiff conveyed entered into an large parcel fendant a of land found court to trial $135,000,” “in security worth excess for the $60,000. a debt conveyance The in the fоrm of deed re absolute was made in that form defendant’s at appearance present would formal records quest so that its than reflect the property rather it was the owner (see opinion on a loan thereon carrying fact true that it was Cal.2d). yearly rental value p. 24 of 24 appeal, former $7,500” “in but property undisputedly was excess property back purportedly “leased” the bank being $3,000 (agreed yearly rental of for a $60,000) per per annum interest the debt fact cent semiannually. pro payable policy A of title insurance was expressly showing itself as owner but cured *6 possession.” in excepting rights of W. Bеeler “any C. who judicially by final that It is further determined 30, place the of business 1938, on June at defendant bank’s good faith, in plaintiff to his indebtedness pay “the offered do . . that willing so; to . this offer ready, and was and able Kennedy, vice-president bank; made that was to Mr. specifying any ob offer Kennedy refused that without form, plaintiff to and to the in jection its refused deal with any way, plaintiff in the vacate the matter but demanded that property thirty days; of its by the within that virtue said offi objection to cer’s actions the defendant bank waived the mode offer; that of the offer and waived tender or other such offer performance suspended running the the (Italics added; Cal.2d.) p. indebtedness.” This Cal.2d) “the (p. court held that trial court further any concluding that further by warranted in action the was plaintiff way payment] in respect [by of tender of would bank, like that have met with rebuff and valid offer having to refused, once made indebtedness ceased been and bear interest that date.” accept debt, After the bank’s refusal to its disavowal of contract its meretricious assertion its and plaintiff’s brought ownership property, plaintiff absolute equitable mortgage the action to have the deed declared an complaint in his and reiterated and continued his offer to reeonvey pay the due and demanded that defendant debt any land. that Defendant answered and denied debt was it, security, due denied that it held the land asserted that reeonvey. the land and refused to was absolute owner of substantially on plaintiff trial in all court found favor 1939, 6, and November rendered estab- issues on alleged lishing by plaintiff re- in the amount and debt upon payment reeonvey quiring that thereof defendant in persisted land still refusal plaintiff. Defendant its reconvey the land and continued its denial that accept payment debt was it and its refusal to due thereof appealing from the
By postponing defendant succeeded its own nearly compliance with the fоur and one-half years. During exactly all of that time it maintained position 20, which it 1938, plaintiff, had asserted June during likewise, time, all that position maintained the he 20, had asserted prior 1938. It will be re- adjudicated finally membered that it been has that on June 20, 1938, good faith offered to entire in- ready, willing and that do; debtedness he able so to Cal.2d) (p. that defendant bank 29 of 24 absolutely “declined negotiate the matter and . . refused proposition right consider the that had the protect his property ’; interest in involved’ “any and that respect further action [by way bank, have would met with like rebuff tender] having a valid offer been refused, once made the indebted- ness сeased to bear of that date.’’ Defendant’s appeal from the judgment proof is conclusive refused judgment; accept e., proof i. conclusive that it did not renounce abandon which it asserted on June. position stopped and which the accrual of interest. Yet profit wrong by now seeks to from own charging *7 plaintiff with interest on the entire debt for all of the period during which it refused and to comply failed with the judgment. is, course, It obvious that defendant’s appeal plaintiff precluded enforcing from argument language Defendant’s is based on certain in the basic it which seeks to have us construe as an adjudication in futuro that appealed the event defendant delayed plaintiff’s from enforcement and, thereof, therewith, correlative, as a compliance plain- his tiff liable should be to defendant for interest on debt dur- ing delay theory occasioned defendant. If the opinion regard majority in this is sound then it would have plaintiff nothing availed repeated prior to have his offer payment. adjudicated If judgment finally such that is liable for from interest the date of the until paid an then offer pay day to was rendered would nothing avail more than the offer June 1938. The singles rely to judgment which defendant out language of the III): (paragraph upon, is follоws " due, owing unpaid plain from said That there is now . $60,000.00 . . to said defendant . . . the sum tiff ... per per cent hear the rate of five which sum shall interest at annum, payable semi-annually paid, from the date hereof until owing unpaid from due, and there is also said constituting $477.88, paid to said defendant the sum of taxes property subsequent said defendant on said real to deed; said shall bear $477.88 execution said that sum per at rate of annum the date percent seven paid; hereof until . a first lien . . shall have property payment the . . real secure the to it of to together specified, the sums and amounts hereinabove with provided herein, until sums and thereon said provided amounts and the interest thereon herein are paid.” (paragraph V) And : sixty days
“That the date within and after final, becomes shall to defendant the said due, together sums and interest found to be above taxes, any, subsequent made if to advances defendant for reconvey trial; when so done defendant shall made, property clear of all free and encumbrances by defendant; done or fails to suffered case make de- specified within time herein then may apply fendant . . . for the usual decree in foreclosure and sale. ...” difficulty in effect with defendant’s is that it
necessarily ignores part judgment, part of the conclu- case, the find- part sions of law which are law the ings judicata. of the basic fact which are res The nature action borne not a defen- must be in mind. It was suit mortgage. dant bank to It was collect debt or to foreclose following by plaintiff accomplish a suit commenced objects: ownership of (1) judicially To establish his he owed land; (2) to was a debt which establish that there (3) security; conveyed and for land as which he had compel accept payment of the debt 20, 1938, offered payment plaintiff good faith had defendant, upon payment defendant; (4) compel Defen- debt, reconvey plaintiff. the land the title of *8 objeсts. After trial dant resisted each of and all these and all of fact plaintiff’s court found in favor on the issues of purpose accomplish plain- whole towas tiff’s objects, objects only not protection included and plaintiff’s rights proper enforcement but all protection of (but by disavowed) of the defendant’s actual a interest as important lien-holder. It is therefore view and construe as a whole. I Paragraph decrees “that the above named of, possession owner ... is the of and entitled to possession property “subject, the real however, of” mortgage Paragraph specifically II defendant.” declares “that . . conveying deed executed said . property, title the . . real was executed . and delivered securing purpose for the an $60,000.00 indebtedness of owing by defendant, together said to said with inter- per per annum, est thereon at the rate of five payable cent semiannually; said deed constituted now constitutes security mortgage property real on said said indebted- paragraph previously ness.” Then follows III quoted, on which, surroundings findings as detached based, on which is defendant principally conclusions upon Paragraph prescribes payment relies. IV “That of the sums amounts hereinabove in paragraph III sрecified, together with provided thereon as therein, reconvey said shall property the real .. (Italics plaintiff.” added.) said Paragraph V is herein- quoted. Paragraph above VI adjudges that defendant “has right, title, no or interest in or to property estate said real mortgage other than thereon to secure the to it of the due, owing hereinabove found to be unpaid from said ... said defendant.” construing Furthermore, necessary judgment, it is findings of to consider the fact and the conclusions of law on which it is It will be remembered that based. the court specifically found before the action was by plaintiff, good faith,” commenced hе offered “in and “was ready, then willing” and there able and “all of said remaining unpaid” “that indebtedness then said offer performance part suspended on the run- ning $60,000.00 the said indebtedness 20, 1938, the date that the same was made on or about June date until the or decree in this quoted finding properly action.” The last a conclu- more open dispute. It sion is law the case not And law. *9 follow, it as accepted must proposition irrefragable if that interest entitled to collect is not shown, that defendant bewill entry judgment after the period the plaintiff for from comply the during itself refused with which defendant and excused by precluded action judgment and enforcement thereof. compliance therewith and from been both the that there has confusion apparent is It debt and interest on the in this between court and court trial judgment. on The conclusions law the interest very properly determined that court judgment of the trial refusal thereof sus- and defendant’s plaintiff’s pay offer to running date of “until the the pended the interest interest ran judgment action.” Whether the or decree this by by law, judg- question not thereafter is a controlled rendering a 6, 1939, The on November was ment. trial court they then, as and judgment on basis of facts issues assume, 6, theretofore, had existed. It did not on November 1939, look and find into futurе that would comply judgment or in- accept refuse to with would it, by preclude or stead from and its conduct would complying it, excuse from with four and for one-half years, finding adjudicate and on that that de- clairsentient fendant entitled to from was nevertheless recover interest for period. that controlling point that the court found facts from which it followed as matter law that accrual of judicata stopped. interest on the debt It is res and, opinion offered to his debt as said in our on the prior appeal (at p. 29 Cal.2d), of 24 “the trial court was concluding any warranted in by plain- further action respect payment] tiff with would have met [tender bank, rebuff by having like and that a valid offer once refused, been made and the indebtedness ceased in- to bear having by terest.” The “ceased to bear debt interest” reason the offer taken by a only the accrual of interest could be renounce- revived position by party or ment abandonment his one or the position. other. at alter In view Neither time did his (and, well, findings such of law conclusions statutory law) judgment provide properly could not money on judgment interest the debt as If and such. when judgment bear operative was rendered and became would annum at per per the rate of cent virtue (Stats. p. lxxxii; Deering’s statute Laws, 1944, Gen. 1) any express virtue of Act but not direction of the § accepted If defendant had ren it thereby dered would have renounced abandoned posi from precluded accruing, tion which and from then proper, law, on would have been as a matter of to have charged plaintiff per per interest at the rate of cent annum on until the debt paid. But the accept rendered, defendant did not or other position, wise renounce or abandon the which as a matter of law, kept the interest the debt accruing. contrary On the appealed the judgment concerned, and at all until the matter been finally times had adjudicated in court, persisted maintaining exactly *10 position 20, which it had taken on June 1938. It is law position pre of the case as well law the state that such cluded the accrual of interest.
Obviously provisions the various of the in the interdependent; basic action were in a pro sense each visions was condition concurrent the others. The defen to required convey dant could not be to the colorable title plaintiff payment land debt; but, likewise, without of the plaintiff obligation was under no whatsoever- any debt or make further offer pay it, until either final became or defendant or renounced abandoned 20, 1938, which it had tаken June had continuously judicata thereafter maintained. It is that res offer; judicata made the res is defendant re that judicata offer; such it is res fused “that further action respect in this would have met like rebuff by the bank”; it is law of the ease and of the state that “the to bear It indebtedness ceased interest.” cannot be success fully challenged utterly that it was a matter of law im to, possible time, prosecute the defendant at the same accept (Mt. appeal payment mortgage of the debt. Shasta Corp. 66 (1924), Cal.App. 186, Power v. Dennis 191 P. [225 that proceeding It noted the trial court in the instant found that it was untrue “That on 6, and since Novеmber cross-complainant continuously has re- accept fused indebtedness due finding That said defendant.” cannot be The sustained. indisputably converse is established. Our dis- own records shows, also appeal the record close, and 6, 1939, and that judgment of November appealed from posi- exactly and continued it maintained appeal on it is 20, 1938, position, which took on tion accept a refusal to judicata, constituted res plaintiff. due findings and conclu of fact if could hold that the
Even we
ap
case, coupled
in the basic
with defendant’s
sions of law
conclusively resolve
judgment therein, do not
peal from the
of the
should
appeal
on this
favor
we
issues
by following
established
be bound to reach the same
well
result
seeks,
the trial
regard,
law. Defendant
in this
sustain
by suggesting
court’s
allowance of interest
should have made
the debt
payment
another tender of
after
rendition of the basic
appeal
case
defendant’s
be
ma
therefrom. Such contention cannot
sustained. The
jority opinion herein, itself, states that
tender is not nec
“A
essary
[or,
where
conduct
declarations of the vendee
instance,
are
such as to
that it would
show
defendant]
unavailing.”
(Hoppin
Munsey (1921),
Cal.
;
Cowan
(1931),
Cal.App. 458,
v. Tremble
[198
398]
91];
Ratterree
Security
L. Co. v.
F. Nat. Bk.
(1938),
here.
v. Edwards
Cal.
Thereafter,
(at
as stated
cited
pages
case
573-574
Cal.), “Upon
an
denying
the order
a new trial
this
28, 1896,
court made an order December
directing the
superior
to deduct certain
court
items
the amount which
it found due
correspond-
. . аnd to make a
ing
law,
amendment of
conclusions of
added:
‘The
its
order denying a
thereupon
new trial will
Judg-
be affirmed.
will then be
ment
entered in accordance with
findings
thus
’
corrected. After receiving
containing
the remittitur
this
superior court,
direction
upon
respondent
motion of the
herein
administrator],
September
an
made
order
[Yancil’s
3, 1897, correcting
finding
its
by deducting
fact
[the
amount directed
. . . and amended its con-
court]
clusion of
. . .
day
law.
On the same
the court caused to be
entered a
decree,’
‘corrected
de-
. . . and
mortgaged
creed a sale of
premises,
and that out of the
proceeds of
[orig-
said sale thе sheriff
to the
due,
inal sum found to be
less
the deductions ordered
..
. ‘with interest thereon . . . from the date of this
court]
decree.
’ ’’
‘‘
Upon
by plaintiff
an appeal
from such corrected
judgment”
September 3, 1897,
this court held that he was
entitled to interest from the
superior
date that the
court made
“decision”;
e.,
its
i.
original findings
the date it
filed
16,1895.
(P.
fact—March
Cal.)
575 of 128
noted,
be
It is to
however,
appeals
discussed in the cited case were
prosecuted by one or the
obligors,
other of the
and that the
obligee—the plaintiff—at
repudiated
no time
the transaction
falsely
asserted that he,
defendants,
and not the
was the
owner
property
owing
and that no sums were
him.
contrary,
On
diligently sought
at all times
recover the
owing
sums
court found to be
to him.
In
contrast are the
facts
the case at
bar where
had
bring
an
compel
action
accept
the defendant
money
which the
had
pay. Consequently
offered to
authority
cited case is
quoted
not
for
proposition
sought
it is
applied
to be
to the facts now before us.
support
Further
plaintiff’s
may
contention
he
properly
charged
only
with interest
from the date the
judgment became final is
&
Fidelity
found
Brooks
Sav.
Loan Assn. (1942),
tender had been refused defendant. principal on the allowed intei'est whatsoever no defendant although years elapsed $15,000, than had sum more five and the date 'betweenthe date such sum was due judgment hy plaintiff. the tender modified the This court “by during five- including . . upon interest sum [such year judgment so period] ., . . total amount of original of the to bear from the date ascertained interest judgment.” Cal.) authority No is cited (Pp. 315-316of of the support interest from the date the allowаnce of original judgment, from the date such rather than contrary me final, appears became such allowance justice previously de- in such cases as both and the rule Phelps 149 Cal. (1906), Wadleigh clared court 93], 645-646 ap- Wadleigh bar, In case, case at in form ab- pealed judgment decreeing a deed intended as plaintiffs solute delivered to defendant was mortgage plaintiffs due from to secure certain sums found they action plaintiffs to defendant. their Before commenced owing, and defendant had tendered to defendant amount in- rejected had refused to allow tender. The trial court accruing tender, terest or subse- subsequent to the date quent finality to the date of The' affirmed in matter of respects, except all as to the point accruing after the became final. On un- Cal.) court (pp. declared 645-646 : “Defendant doubtedly adjudged legal entitled to amount her, plaintiffs, due less the awarded the time the costs plaintiffs, becomes to such time as the under final *13 judgment, amount, or in tender her such the event tender,
they fail make sale or- until the foreclosure (Italics added.) dered in that has event been had.” adjudicated recognize It seems to if me that we are to facts, accept case, the law of the and follow the law of Cali- fornia, modify we must of foreclosure herein the decree allowing basic only from the date the judgment became final. 4701. In No. Bank. 1946.]
[Crim. PEOPLE, GORY, Appellant. THE Respondent, v. MORRIS