Taylor v. Ellenberger

Citations

• 6 Cal. Unrep. 725
• 65 P. 832
• 1901 Cal. LEXIS 1269

Syllabus

<p>Mortgage Foreclosure—Modification on Appeal—Restitution.— Code of Civil Procedure, section 957, provides that when a judgment is reversed or modified! the appellate court may make restitution of all property lost by the erroneous judgment or order, so far as such restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment. The supreme court directed a superior court to modify a judgment of foreclosure for the sale of personalty and realty by ordering a separate sale of each, which modified decree was entered after the real estate had been sold. Held, that the direction for the restitution of the property being discretionary, such sale would not be set aside, in the absence of any showing that the mortgagors had been injured] by the sale, and that the proceeds were insufficient to pay the real estate mortgage.</p> <p>Mortgage Foreclosure—Appeal.—A Contention That an Order of Sale directed) to be executed by the sheriff was void where performed by a commissioner will not be considered on appeal, the question not having been raised in the lower court.</p> <p>Mortgage Foreclosure—Irregularity in Order.—Under Code of Civil Procedure, section 726, as amended in 1893, providing that a commissioner, when appointed to conduct a foreclosure sale, shall possess the powers and be subject to the duties of sheriffs in like cases, a sale conducted by a commissioner is not vitiated by the fact that the order of sale was directed to the sheriff, the direction to the sheriff being a harmless irregularity.</p> <p>Mortgage Foreclosure.—Where the Supreme Court Ordered a Judgment Modified, a contention that the judgment, as modified, was erroneous, in that the trial court did not amend the findings, is without merit, since the supreme court cannot modify a judgment if it is necessary to amend the findings to support it, the findings not being in the control of such tribunal. '</p> <p>Mortgage Foreclosure.—Where the Commissioner’s Deed and