Wilson

The appellant has appealed from a judgment rendered following an order granting a motion made by respondent under section 633 of the Code of Civil Procedure, whereby the original judgment was vacated and a different judgment entered. The action is for specific performance of a contract to purchase land; the appellant being the vendee and the respondent the vendor thereof. In the original judgment specific performance of the contract was denied; the respondent was denied damages, and a fund of $5,000, which had been deposited with the clerk of the court, was ordered to be handed back to appellant. The latter judgment entered does not mention specific performance or damages but awards to plaintiff judgment and directs the clerk of the court, into whose hands the $5,000 had been paid, to deliver the same to plaintiff (respondent herein). It is this latter judgment from which the appeal is taken, and it is the deposition of this $5,000 which is mainly involved in the question before the court.

Appellant’s ground of appeal are: “1. That the evidence is insufficient and in fact there is no evidence to support the finding of the court designated as conclusion of law number 1 as amended…