Coviello v. Moco Fruit Co., Inc.

KLETTE, J., pro tem.

A money judgment was obtained in this action by Mike Coviello, plaintiff and respondent, against defendant and appellant, M. P. Mosesian, and others. On January 5, 1940, the following written stipulation was entered into:

“IT IS HEREBY STIPULATED that A. P. Coviello, attorney for Mike Coviello, may take two drafts Nos. 1057 and 1052, in the respective sums of $466.80 and $320.00, drawn against M. Antonellie on the California Bank, 16-161, for collection and the proceeds to be credited on account of the judgment against M. P. Mosesian in the ease of

Coviello

v.

P. M. (M. P) Mosesian et al., Superior Court, Tulare County No. 25754.

Said drafts are to be collected for their amounts or in lieu thereof the full amounts of same will be credited against judgment. In the event said drafts are not collected within ten days from date hereof, they will be returned to M. P. Mosesian, 1301 Pacific Southwest Bldg., Fresno, or said drafts may be retained by A. P. Coviello provided they are credited at that time on the judgment as aforesaid. In the event that said drafts are collected no charges will be made for the collection of same.”

The two drafts mentioned in the stipulation, not having been returned to appellant within ten days, he, on January 25, 1940, made an

ex parte

motion, to have the amount of these two drafts credited upon the judgment. This motion was granted by the court. Plaintiff and respondent thereupon made a motion, based upon affidavit, to set aside this order so made on January 25, 1940. The latter motion was heard on February 19, 1940, and granted. This appeal is taken by defendant Mosesian from that order.

[639]

Where a trial court rules upon a motion, the appellate court can only pass upon the question as to whether it has abused its discretion.

(Wilder

v.

Wilder,

214 Cal. 783 [7 Pac. (2d) 1032];