Uppman v. Eyraud

BRAY, J.

Plaintiff appeals from an order denying her motion to vacate judgment in a partition action.

Questions Presented

1. Was this action dismissed with prejudice by the minute order ?

2. Did defendant Wilson’s death affect the judgment?

3. Can plaintiff question judgment on appeal from denial of motion to vacate judgment?

Record

December 20, 1954, a minute order recites (among other matters) : “By stipulation of counsel, who advised the court

[730]

that the within ease has been settled, it is ordered that the plaintiff pay to defendant Kathryn Ruth Wilson the sum of $1500 cash, that deeds be executed and that the within action be dismissed with prejudice.”

October 7, 1955, “Judgment for Partition” entered. This stated that the parties had stipulated that plaintiff pay defendant Wilson $1500 for the latter’s interest in described real

property;

that defendant Wilson dismiss a certain action then pending in the municipal court; that defendant execute a deed to plaintiff of her interest in said real property. It then awarded the real property to plaintiff, ordered defendant to execute to plaintiff a deed of her interest in said real property, and gave defendant Wilson judgment against plaintiff for $1500. It ordered defendant Wilson to dismiss the municipal court action with prejudice. Bach party was to bear his own costs.

*

December 30, 1954, defendant Wilson died.

January 27, 1956, the administratrix with the will annexed of defendant Wilson’s estate was substituted as party defendant.

February 23, 1956, plaintiff’s motion to vacate the formal judgment denied.

1.

Dismissal.