MacHado v. MacHado

66 Cal.App.2d 401 (1944) DOMINGO MACHADO, Appellant,

v.

JOHN H. MACHADO et al., Respondents.

Civ. No. 14532. California Court of Appeals. Second Dist., Div. Two.

Oct. 17, 1944. O. B. De Camp and Darwin H. Wolford for Appellant.

Nelson & Castro for Respondents.

MOORE, P. J.

Appellant sued to set aside a judgment of the superior court in a partition action on the ground that it had been obtained by extrinsic fraud perpetrated upon him. Demurrers having been sustained without leave to amend, the action was dismissed as to demurring defendants by judgment from which this appeal was lodged. The following resume of the 70 page complaint will serve to present the issues, appellant being referred to as Domingo:

A partition suit was on file in the Superior Court of San Luis Obispo County and the referees had filed their report. That report is pleaded in haec verba. A drawing had been held by the heirs of Roza Machado, in which Domingo drew tract 9. John Machado had drawn tracts 6 and 10 and was dissatisfied with the outcome. He desired to procure an award of tract 9 to himself. At that time Domingo was represented by Attorney Libeu while Attorney Hart appeared for John. In furtherance of John's scheme to obtain tract 9 Hart stated to Libeu that it would not be necessary for Libeu to attend court on August 24, 1940, and that no advantage would be taken of Domingo. In reliance upon Hart's representation Libeu did not appear in court on that [403] day. But John and Frank came with Hart acting as attorney for them and negotiated with Domingo for an exchange. Hart told Domingo that if he would accept tracts 6 and 10, (presumably in exchange for tract 9) $4,500 would be paid to Domingo and that the judge then had the money. Although they knew that Domingo believed them and relied upon their representations and knew that he was acting under a mistake of law, they fraudulently induced him to enter into an oral stipulation to accept tracts 6 and 10 and the sum of $4,500 to be paid by noon of that same day;

At the hearing, in Libeu's absence, Hart, with John's wilful acquiescence, represented to the court that he was attorney of record for Domingo, although he was not Domingo's attorney of record or at all. Both Hart and John Machado were lawyers and knew that Domingo was a layman and, because he was unfamiliar with legal principles and procedure, did not know that the court or the heirs could object to a stipulation made by John and Domingo or that the court would be required to approve of same. Also they knew that the title to tracts 6 and 10 could not pass to plaintiff until after a final determination of the rights of all of the heirs;