208 P. 330 | Cal. Ct. App. | 1922
The defendants appeal from the judgment herein adjudging that a certain promissory note and mortgage in favor of defendant Fitch for $9,439.04 are invalid for any amount in excess of $1,787.89 and enjoining *336
the defendants from collecting any greater sum upon said note. The facts are fully set forth in the opinion this day filed deciding plaintiff's appeal (ante, p. 329 [
Appellants contend that the plaintiff is not entitled to a judgment of cancellation because there is neither allegation nor proof that the plaintiff restored or offered "to restore defendants to the same position they would have been if they had not relied upon the instrument sought to be canceled." As pointed out in the opinion reversing the judgment, the defendants' position has not changed but they may still pursue every remedy which was available to them at the time of the execution of the note. The reversal of the judgment on plaintiff's appeal necessitates a retrial of all the issues raised by the pleadings as fully as if the case had never been tried. The other points argued on this appeal will not probably arise on the retrial of the case and no useful purpose would be subserved by a consideration of them in this opinion. It is sufficient to say that there is no merit in any of them.
[1] If the defendants alone had appealed it would be necessary to affirm the judgment, but an affirmance would be inconsistent with the judgment of reversal already given and would only lead to confusion. By the reversal already had, the questions presented by defendants' appeal become moot questions, their consideration not being necessary for the guidance of the court in the retrial of the case. Under such circumstances the appeal should be dismissed. (San Jose Bank ofSavings v. Bank of Madera,
The appeal is dismissed, the respondent to recover its costs on appeal.
Hart, J., and Burnett, J., concurred. *337