Gutierrez

Assault and battery. After a court trial judgment for $6,000 damages in favor of the plaintiffs Henrietta Gutierrez and $1,000 in favor of the plaintiff Tony Gutierrez was entered. Defendant appeals.

On February 23, 1972, less than a month before oral arguments in this matter were scheduled to be heard, respondent moved to dismiss the appeal as moot.

From the documents before us the following appears: in late March 1971, execution was levied on real property owned by appellant. A sale was noticed for May 19. It was continued to June 4. In consideration of a further continuance to September 10, appellant signed a handwritten agreement pursuant to which the case was to be “settled” for a total of $7,000, $2,000 of which were paid forthwith, the balance on or before September 10. The appeal was then to be dismissed and satisfaction of judgment entered. If the balance was not paid, the sale was to take place. Later in June 1971, division one of this court denied a petition for a writ of supersedeas. The balance of $5,000 was not paid by September 10, and the property was sold for $5,450.04 to the respondent. On December 21, 1971, counsel for appellant mailed a check in the…