Gibson v. Berryman

Action to Enjoin Judgment Affirmed upon Appeal—Alleged Want of Jurisdiction—Bight to Judgment—Stipulated New Trial— Estoppel.—In an action to enjoin defendant from enforcing a judgment for $900 rendered in his favor in an action for unlawful detainer against the plaintiff (which was affirmed upon appeal to this court), for alleged want of jurisdiction to render the judgment on a stipulated new trial, after the right of new trial was lost, where it appears that at the time of the stipulation defendant was already entitled to a judgment for $900, on the findings of fact and conclusions of law, and by the stipulation plaintiff obtained the right to a new trial, on which the same judgment was again rendered, the plaintiff, as appellant, should not be heard to complain that there was no jurisdiction to render the judgment on the stipulated new trial.

Id.—New Trial—Waiver op Notice op Intention—Stipulation Giving Jurisdiction.—It is well established that a notice of intention to move for a new trial may be waived. Both parties, by the stipulation for a new trial, waived notice of intention to move for a new trial, and the court, upon said stipulation, had jurisdiction to make the order granting the new trial.

Id.—Untenable Attack on Judgment por Fraud.—An attack on the judgment for fraud and collusion of plaintiff’s attorney with defendant and his attorney in obtaining it is not tenable where plaintiff’s attorney appears to have acted in entire good faith with his client, and there is nothing to indicate that any fraud was practiced upon the plaintiff or the court, or that there was any act of collusion or fraud on the part of defendant or his attorney in obtaining the judgment complained of.