People ex rel. Dunn v. Burns

78 Cal. 645 | Cal. | 1889

Foote, C.

—The plaintiff had judgment, but moved for a new trial, which was refused. From the order made in the premises, this appeal is taken.

It appears, among other things, from a stipulation filed by the attorneys in the cause in the appellate court, “ that on the thirty-first day of January, 1888, the defendants, Freeman and Schardin, paid into court the amount of the judgment for principal, interest, and costs entered on said thirty-first day of January, 1888, set out in the transcript; that thereafter, on the twelfth day of March, 1888, plaintiff's attorneys of record received said moneys from the clerk of said court, and receipted therefor, and satisfied said judgment by indorsement of satisfaction upon the margin of the record thereof.” Upon this it is now claimed by the respondents that the appeal must be dismissed. The attorneys for the appellant, in opposition to that, argue that the stipulation cannot be considered, because it is no part of the transcript on appeal. This view might have force if the stipulation had been made in the court below, and not in the supreme court. The admission being made, as it is, in the appellate court, we see no reason why it should be disregarded. The judgment, being" satisfied, “ has passed beyond review,” for the satisfaction thereof “is the last act and end of the proceeding.” (Morton v. Superior Court, 65 Cal. 496.) The fact that the appeal is taken from the order denying a new trial makes no difference, as a reversal of that order would necessarily carry with it a new trial and reversal of the judgment, which cannot be had after it is satisfied by the party in whose favor it was rendered. If, as we gather from the briefs of counsel for appellant, they have relied solely upon the point that the appeal could not be dismissed from anything appearing in the stipulation, and have, therefore, not availed themselves of the presentation of facts which they might otherwise have done, and which might perchance place the matter in a different light, it may be that upon a proper showing, before the going down of the remittitur, an opportunity might be afforded to relieve them of the force of the stipulation. As the case now stands, we advise that the appeal be dismissed.

Belcher, C. &, and Hayne, C., concurred.

The Court.

For the reason given in the foregoing opinion, the appeal is dismissed.

Rehearing denied.