Citations
- 91 Cal. 313
Full opinion text
De Haven, J.
On November 8, 1889, in the superior court of Los Angeles County, the defendant herein obtained a judgment against the plaintiff in this action for the recovery of the possession of a certain lot of lumber, or in case a delivery thereof could not be had, then for its value, found to be $1,000, and also for $250 damages, and costs of the action.
This action is brought to enjoin the enforcement of said judgment for damages, and also the alternative part for the value of the lumber. The court below rendered judgment enjoining the defendant from collecting the said sum of one thousand dollars, and requiring him to satisfy the judgment to that extent. The defendant appeals.
The court below found, and indeed the fact is not denied in the answer, that during the pendency of the action brought by the defendant against the plaintiff, but after issue joined therein, the plaintiff returned to the defendant all of the lumber sued for. It also appears that during the trial, which resulted in the judgment referred to, the plaintiff herein offered to show this fact, but the court held the evidence inadmissible under the pleadings.
The findings further show that after the rendition of said judgment, and within the time allowed by law to move for a new trial, the attorney for the defendant in that action agreed with the plaintiff’s attorney therein that upon payment of $150 and costs, the said judgment should be satisfied, and that relying upon this agreement, the plaintiff herein did not move for a new trial, and that after the time to move for a new trial had elapsed, the attorney for the defendant refused to accept the said sum agreed upon, and to satisfy said judgment.
1. Upon the facts above stated there can be no doubt that it would be an act of gross injustice upon the part of appellant to enforce the collection of the alternative judgment for one thousand dollars, and there can be as little doubt that it is within the power of a court of equity to prevent it. As already stated, the court below finds, and the defendant does not deny, that before the rendition of the judgment the plaintiff had in fact returned to him the lumber sued for, and that he has used and sold the same. This being so, the judgment, in so far as it awarded to the defendant here the right to recover said lumber, or its value if no delivery could be had, has already been satisfied. That judgment, 'm the form in which it was entered, was in accordance