Goodrich v. Tulare Ice Co.

California Court of Appeal Mar 23, 1956 No. Civ. 4982Published

Before: Mussell

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Holding. The court held that the plaintiffs failed to establish extrinsic fraud or that they were prevented from fully exhibiting their case by the defendants' conduct, and therefore affirmed the denial of the motion to vacate the judgments.

Issues

Whether the trial court erred in denying the motion to vacate the judgments on the grounds of extrinsic fraud.
Whether the trial court properly excluded hearsay testimony regarding statements made by a witness who was present in court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence presented at the hearing on the motion to vacate the judgments reasonably supports the inference and the implied findings of the court that plaintiffs failed to establish extrinsic fraud”

“The record does not show that Jones was prevented from attending the trial by reason of the acts or conduct of defendants and the reasons for his nonattendance were not established.”

MUSSELL, J.

These are actions for the alleged wrongful deaths of Wiley S. Bryant and Nancy M. Bryant, who were killed in a collision between a car in which they were riding and an ice truck driven by Leonard D. Brownlee, an employee of defendant ice company. The actions were tried in the superior court in Tulare County in October, 1953, and a jury returned a verdict in favor of the defendants in both actions. Plaintiffs appealed from the judgments thereupon entered and said judgments were affirmed on appeal by this court on May 27,1954, in

Bryant

Tulare Ice Co.,

125 Cal.App.2d 566 [270 P.2d 880]. On January 3, 1955, appellants filed in the superior court a notice of motion to vacate and set aside the judgments on the ground of extrinsic fraud, in that the plaintiffs were prevented from fully “exhibiting” their case by the actions of the defendants in causing the absence of a material and necessary witness at the trial. Plaintiffs here appeal from the order denying said motion.

The notice of motion contained the statement that it would be supported by the attached affidavits of James F. Reese and Lane Williams and by oral evidence to be introduced at the hearing thereon.

Reese stated in his affidavit that he was one of the attorneys for the plaintiffs; that on or about October 26, 1953, he contacted one George L. Jones in his garage in Tulare; that Jones stated he had examined the truck involved after the accident; that there was nothing at all wrong with the front wheel assembly and that he could find nothing out of order with it; that a subpoena was served on Jones but he failed to appear at the trial; that he searched for Jones for about one and one-half hours but was unable to find him.

Lane Williams stated in his affidavit that he was with Reese when Jones was interviewed and heard Jones state that he had inspected the front end assembly of the truck and had found nothing wrong with it; that it was also understood that Leonard D. Brownlee had stated in the presence of Jones and others that he and his boy friend, who was with him at the

[226]

Goodrich v. Tulare Ice Co.

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MUSSELL, J.

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