Wilson v. Chesley

HART, J.

This is a motion to dismiss the appeal taken in the ah ove-entitled cause from an order setting aside the default of the defendant upon his failure to answer the complaint within the time prescribed by law, and vacating the judgment entered upon said default. The motion is supported by an affidavit filed by the defendant and recourse to “all of the proceedings and pleadings had in this action.”

The action is in ejectment, and its purpose is to recover from the defendant the possession of certain real property, situated in Butte County, and for damages for the alleged unlawful withholding of such possession. The controversy grows out of a contract whereby the plaintiff agreed to sell

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to the defendant and the latter agreed to purchase said property upon certain specified terms.

The affidavit of the defendant, which is not denied or controverted by the plaintiff, recites that “soon after the appeal was taken, to wit, on or about the 15th day of August, 1913, one B. F. Johnson purchased from the said J. L. Wilson, all of his equity in said property and also .purchased of this affiant all of his interest in said property, -thereby merging the title and the said possession of said land in the said B. F. Johnson; that at the time the said B. F. Johnson purchased the two equities aforesaid, it was for the purpose of settling this action, as was stated to this affiant at that time, and the said Joseph L. Wilson did transfer to said B. F. Johnson all of his right, title, and interest in said land, together with any damages that he may have sustained, and the said B. F. Johnson, in purchasing the equity of this affiant, did make it a part of the consideration that this affiant would be released fully and forever from any damage or expense by reason of his withholding this property; that it was the affiant’s information and belief that the settlement aforesaid would include each and any cause of action of the aforesaid action and ejectment or of this appeal, and that the said action and this appeal would be dismissed and forever satisfied; that when this affiant learned that the said appeal had not been dismissed, he asked J. R. King, one of the counsel for the plaintiff and appellant, why the action had not been dismissed, and the said J. R. King advised him that the reason the said appeal had not been dismissed was that the appellant desired that the appeal be heard so as to determine who would pay the costs of the appeal; that the only right to be adjudicated by a decision of this court would be the question of costs, as all other matters therein have been settled and the subject has long ceased to exist.”