Kraemer

This action was brought under section 2941 of the Civil Code, of which the following is a copy:

It is alleged in the complaint that one W. H. Shinn mortgaged to defendants a tract of land of eighty acres; and that afterwards plaintiff, by purchase, became and still is the owner of the land; that Shinn paid the mortgage debt and demanded of defendants a certificate of discharge of the mortgage, or that they cause satisfaction of the mortgage to be entered of record, with which demand the defendants refused and still refuse to comply, to the damage of the plaintiff in the sum of two thousand five hundred dollars for which, and also for the statutory penalty of one hundred dollars, the plaintiff demands judgment.

By their verified answer the defendants denied, among *201 other things, that plaintiff became or still is the owner of the land.

The plaintiff had judgment for only the statutory penalty of one hundred dollar's, without costs.

Defendants appeal from the judgment on the judgment-roll containing a bill of exceptions.

The bill of exceptions shows that when the cause was called for trial by the court, and before any evidence was offered, “the plaintiff, by his counsel,…