Continental Building & Loan Ass'n v. Woolf

CHIPMAN, P. J.

Action for the recovery of possession of real property. Plaintiff had judgment. Subsequently defendants moved to set aside and annul the judgment, which was denied. Defendants appeal from the judgment and from the order denying their motion to vacate the judgment.

The judgment was as follows: “This matter coming on regularly for trial, in open court, by the court, both parties having waived a jury, the 24th day of September, 1908, in the presence of Gavin McNab, Esq., counsel for plaintiff, and of Joseph Slye, Esq., of counsel for the defendants, Louis Woolf and Mary L. Woolf, and of said defendants, and the parties hereto having entered into a stipulation in open court and duly reported by the official reporter of this court, whereby the amount payable by the defendants to plaintiff was fixed at thirteen hundred ($1300) dollars, together with subsequent costs including the calendar fee and reporter’s fee, five hundred ($500) dollars of said sum to be paid by the 28th of September, 1908, and the remainder within thirty days from said 24th day of September, 1908, and whereby it was agreed that in the event the said money should not

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be paid in accordance with said stipulation at that time, then judgment should go against said defendants as asked in the complaint, without further trial:

“And the cause having been regularly continued from time to time, and finally until this 18th day of November, 1908; and counsel for plaintiff having, on this said 18th day of November, 1908, in the presence of counsel for defendants, moved for judgment, pursuant to said stipulation, and Joseph Slye, Esq., of counsel for defendants, having moved for a further continuance to permit of compliance by defendants with the requirements of said stipulation; and

“It appearing to the satisfaction of the court that the said stipulation was duly entered into in open court, and that defendants, and each of them, had failed to comply with same, and that plaintiff is entitled to judgment in accordance with the terms of said stipulation, in all respects as asked in the complaint.

“And the law and the premises being by the court here understood and fully considered,