18 Utah 206 | Utah | 1898
This action was originally brought to foreclose a trust deed on certain property situate in Ogden City, Utah. At the trial foreclosure was decreed and judgment entered against the defendants for $1,860, with interest thereon from a certain date, and for certain sums paid by the plaintiff for taxes and insurance, and for counsel fee. In rendering that judgment the court refused to credit the defendants with certain monthly payments of premium amounting to $512.50, having regarded them as belonging to the association, and as not received in extinguishment of the debt. Pending an appeal from the judgment to this' court, it appears the property, covered by the trust deed, was regularly sold in pursuance of the decree, and purchased by the plaintiff association for the full amount of the judgment. On appeal it was insisted for the apel-lants, that the $512.50 paid in monthly instalments, as premium, should have been allowed by the court as a credit on the principal sum borrowed, and this court held that the same should have been so applied.
In deciding and remanding the case, it was said: “From the foregoing considerations, we are of the opinion that the defendants are entitled to credit on the debt for the $512.50, paid as premiums on the stock for the loan, and that the court erred in not allowing the same. We do not deem it necessary to discuss the other questions presented. The case must be remanded with direc
Thereafter a remittitur was set down, and, in pursuance of the mandate of this court, the court below set aside its former judgment and entered a new one, denied the motion of plaintiff to set aside the sale made under the former judgment, and refused to enter judgment in form requested by the plaintiff. Thereupon the plaintiff appealed from the judgment so entered, and from the order denying the motion to set aside the sale and refusing to enter judgment in form as requested by the plaintiff.
The respondent, in the first instance, objects to the appellant being heard on this appeal, among other things, on the ground that no appeal lies from a judgment entered in accordance with the mandate of the appellate court.
Upon an examination of the judgment entered and of the warious orders of court denying motions of appellants we are of the opinion that the objection is well taken. There was no question made in this court, respecting the sale, which, it appears, was made pending the appeal at the instance of the appellant, and no sufficient reason appears for setting it aside nor was there any direction of this court to the court below to do so. The only material question affecting the judgment on the former appeal was that respecting the $513.50, and the effect of our decision and mandate was that the judgment of the court should be so modified as to credit that sum as a payment on the debt.
The judgment entered is a substantial compliance with the mandate of this court, and therefore no appeal lies therefrom.
