64 Cal. 273 | Cal. | 1883
This is an action to foreclose, a mortgage. The affirmative relief asked for by the defendant is sufficiently stated as a counter-claim, as to the one thousand dollars (sub. 2, § 438, Code Civ. Proc.), and the evidence relating thereto is sufficient to sustain the findings. As to the one hundred dollars claimed as a forfeit for not executing, on demand, a certificate of discharge of the mortgage, the findings relating thereto are not sustained by the evidence. • There is no evidence of the demand required by section 2951 of the Civil Code. As there is a want of evidence to sustain the findings in regard to the demand for satisfaction of the mortgage, and as we cannot direct a new trial on that portion of the case only, it is therefore ordered, that, if within twenty days next succeeding the filing of this opinion, the defendant shall file in this court a stipulation in due form, remitting the sum of one hundred dollars from the judgment in favor of the defendant, and consenting to a reduction of said judgment to that extent, the said judgment in that event shall be affirmed as to the remainder thereof. But if the defendant shall fail or neglect to file said stipulation within the said period above prescribed, then that said judgment be reversed, and said causé remanded for a new trial.
Hearing in Bank denied.
