Sager v. O'Connell

BRAY, J.

Plaintiffs appeal from (1) an order denying their motion to compel the execution and entry of a satisfaction of judgment, and (2) an order denying their motion to strike from the files a certain judgment.

Questions Presented

1. What is the effect of the second judgment? 2. Should the judgment be satisfied?

Record

November 12, 1948, judgment

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was rendered in favor of defendant and against plaintiffs providing that the land of defendant is entitled to receive lateral support from plaintiffs’ land, requiring plaintiffs to restore such support within 90 days, and in the event of their failure to do so within that time defendant shall have and recover from plaintiffs the sum of $3,000. More than 90 days later, on June 16, 1949, the parties entered into an agreement providing the type of support to be erected including a fence on top of it, said support to be a specified type of concrete bulkhead to be erected on a 2-foot strip of land which defendant was to sell to plaintiffs for $300, and containing other provisions including one to the effect that defendant “agrees to suspend the enforcement of the judgment during the time that said bulkhead is being built, provided said period of time does not extend over and beyond the 15th day of Sept., 1949, save and except if the completion of said bulkhead on or before said date, is prevented by strikes, acts of God, or by any other matter or thing outside of the control of the Second Parties, said time to be extended to its completion.”

On March 22, 1950, on application of defendant and an affidavit to the effect that plaintiffs had failed and refused to construct said support, judgment

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in favor of defendant

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and against plaintiffs in the sum of $3,000 was rendered. October 20, plaintiffs moved the court for an order directing defendant to enter a satisfaction of judgment. The motion was based on the affidavit of plaintiff Sager, setting forth the beforementioned agreement of extension of time to September 15, 1949, and stating that he had notified defendant's attorneys he was unable to construct said support within that time due to the fact that he would not have the money to pay for its construction until certain property was sold. He was having difficulties clearing the title to this property, which he would sell as soon as the title was cleared. Defendant’s attorneys told him that while they were anxious to have the support completed as soon as possible, they understood his difficulties and for him to complete said support as soon as possible. Belying upon the willingness of defendant and the attorneys to extend said time, plaintiffs did expend considerable sums of money in constructing said support and did comply with all the terms of the agreement. It was never the intention of the court that defendant should have a bulkhead and a fence on top of it and the other work and labor performed which had been agreed upon in said agreement and also to have a sum of money besides. Plaintiffs had requested a satisfaction of judgment from defendant and his attorneys, and they had refused to give it. The circumstances described which delayed the construction of the support were beyond the power of plaintiffs to prevent. No counteraffidavit was filed.