Wherry v. Rambo

VALLEE, J.

Appeal from an order denying a motion to vacate an entry of satisfaction of a judgment.

December 29, 1947, a judgment was .entered awarding plaintiff, $2,145 with interest. July 20, 1949, the then attorney for plaintiff filed with the clerk a satisfaction of the judgment. It was dated June 30, 1949, signed by plaintiff’s attorney, and acknowledged by him on July 1, 1949, before a notary public. It stated that the judgment had been paid, acknowledged full satisfaction, and authorized and directed the clerk to enter full satisfaction of record in the action. July 26,

[570]

1949, the clerk made an entry on the judgment acknowledging full satisfaction.

July 30, 1949, plaintiff, appearing in propria persona, filed a notice of motion to vacate the entry. The notice stated that the motion would be made on “the ground that the said Satisfaction of Judgment was entered without said plaintiff’s knowledge or consent and against his express wish, desire and instructions to his former counsel herein, Harold J. Sinclair, Esq., and upon the further ground that the same was entered because of surprise and excusable neglect as set forth in section 473 of the Code of Civil Procedure of the State of California. ’ ’

In support of the motion, plaintiff filed his affidavit in which he stated: the judgment had not been satisfied by payment or otherwise; prior to a substitution of attorneys on file in the action, he was represented in the action by Attorney Harold J. Sinclair (the substitution of attorneys is not in the record, nor does the date it was filed or who was substituted appear); July 20, 1949, his former attorney (Harold J. Sinclair) signed and caused the satisfaction to be filed without his knowledge or consent and contrary to his desire and wish; he had not received any money or any consideration for the satisfaction, had not agreed to any settlement of the judgment, and had not ratified or approved the entry of the satisfaction ; July 5, 1949, he forwarded, by registered mail, to the attorney who signed the satisfaction a letter in which he expressly instructed the attorney “not to settle the within matter” without his permission or consent (a copy of the letter was attached to the affidavit); he had never given any such consent to his attorney, or to anyone else; since he discovered the Avrongful entry of the satisfaction, he had made many efforts to contact his said former attorney for the purpose of obtaining an explanation “relating to the said satisfaction” but had been unsuccessful; he “has no knoAAdedge or information Avhatsoever as to the circumstances or conditions under which said satisfaction of judgment was entered or what consideration, if any, was paid by said defendant to plaintiff’s said former counsel; that affiant has iioav been informed and believes and therefore alleges that said satisfaction [of] judgment Avas entered in fraud and for the purpose of depriving affiant of his rights under said judgment ...” A copy of a letter dated July 26, 1949, from plaintiff to his attorney Avas also attached to the affidavit. The letter said that plaintiff had learned that the satisfaction had been filed on