The record-union., 1892-10-05
FRESNO LITIGANFS.
A Somewhat Mixed Proceeding to be
Tried Again.
Rehearlng Granted in the Case of
Clark and Mckenzie VS.. p. p.
Austin and Others.

Inc supreme Court filed It's decision
yesterday in Deputy Clerk Goran's office
in the case of A. NJ. Clark and w. II.
Mckenzie VS.. Paul P. Austin ct al. The
case was from Fresno County and it was
an action to forecloSe mortgage in which
Austin and several others were Jointly
liable to the plaintiffs in various amounts.
The mortgaged property was sold by
the Sheriff, who returned deficiency of
S7,9l3, for which judgment was dock
eted by order of the court. 1t appears
that on May II, 1891, Clark paid S4,025 80
OF this Judgment in addition TO his pay
ment of one-third of the whole debt be-
| fore Judgment, and also that full satisfac-
ton of the Judgment was entered on the
same day; but it does not appear when or
by whom the balance of the judgment
was paid.
Clark claimed the benefit of the judg-
| ment to enforce contribution or repay
ment from Austin to him of the full sum
of s, ,025 80 paid by him on the Judgment,
under Section 700 of the Code of Civil
Procedure, and within ten days after his
| payment of this sum filed with the Clerk
of the Court in which the judgment was
| docketed, the following notice:
To Il. G. WitIians, Clerk Of Fresno County:
| You will please take notice that the defend
ant. b: h Clarke, did on this 12th day Of
May, 1891, pay to the plaintiffs, S4,O25 60,
and that said payment was more than the
due proportion of the judgment herein which
said defendant Clarke ought to pay in the
whole of said sum so paid, TO wit S4,O25 90,
and that he claims that he has the right to
contribution and repayment from the defend
ant, Paul L. Austin, and that he is entitled to
the benefit of the said Judgment against said
Austin in said sum of $4,O25 90. You are
requested to enter this claim upon the judg-
ment docket. CRAIG Il MEREDITH,
Attorneys for defendant, E. X. Clarke.
Thereupon the Clerk made the follow
ing entry in the margin of the docket of
| the judgment: "The defendant, Il. X.
Clarke, has filed with me notice of his
claim to repayment from defendant, Paul
Z. Austin, of S4,025 60, being more than
his due proportion, and he claims the
benefit of the judgment herein against
said Austin"
Neither this entry, nor the notice filed
with the Clerk, was served on Austin or
Gavitt. On June 6, 1891, Clarke served,
| by mail, on Austin, q notice and affidavit
that on June 9th he would move the
court to order an execution to issue
against defendant Austin, on the ground
| that he Clarke has paid more than his
| due proportion of the Judgment.
| 1t appears that the motion was heard,
and the judgment roll and docket entries
| in the foreclosure action, and that the
motion was denied. But the record does
not show whether or not Austin appeared
at the hearing, though it is asserted that
! he did by counsel for appellant, and is
not denied. Clarke brought the appeal
| from the order denying his motion.
| The Supreme Court says: ''It is true
! that the right of Clarke to enforce contri-
| button by proceedings under Section 700
| of the Code of Civil Procedure is made to
| depend upon the condition that he must
| have filed with the clerk, within ten
days after his payment of more than his
proportion, notice of his claim to contri-
| button or repayment 1t is also true
that Austin was entitled to notice of
Clarke's motion for execution upon the
| Judgment But it was not necessary, as
contended by respondent, that the notice
filed with the clerk should have been
served on Austin within ten DAYS after
Clarke's payment of more than his pro-
portion of the judgment, as this is neither
expressly nor impliedly required by the
section of the code authorizing the pro-
ceeding.
The only purposes of filing the no.
tice with the clerk are to authorize and to
enable him to make the proper entry in
! the margin of the docket. Without such
! notice the clerk would have neither the
| authority nor the ability to make the
| proper docket entry. Some dicta appa-
| rently inconsistent with this view are to
| be found in Davis VS.. Heimback as Cal.
1922
'It is contended by respondent that
upon the showing made at the hearing
Austin was not bound to contribute to
| Clarke the sum CLAIMED (S4,025 60), but we
think this is mistake. From the data
furnished we cannot figure Austin's liza
| bility to Clarke to be less than the sum
demanded. But, however this may be.
the whole matter may be properly esti-
mated and adjusted upon rehearing OF
| the motion. The order should be re-
versed and the case remanded for further
| proceedings