Faulkner v. Brooks

HOUSER, J.

Although not entirely disclosed by the official record herein, but to some extent dependent upon undisputed statements set forth in the briefs of the respective parties hereto, it satisfactorily appears that the pertinent facts which relate to this appeal are as follows: At a time when, in accordance with the provisions of a lease, defendant Spaulding was in possession of a part of certain real property, plaintiff became the purchaser of the whole of the property at a sale which was authorized by the provisions of a trust deed. Thereupon, under the provisions of section 1161a of the Code of Civil Procedure, plaintiff served on the defendants “a three-day notice to quit” possession of the property, etc.; and on the failure and refusal of the defendants to yield to plaintiff the possession of the property, plaintiff commenced an action against defendants in “unlawful detainer” for possession of the premises. Four days after the answer to the complaint of all the defendants in the action had been filed, “a stipulation consenting to the entry of a judgment against all of the defendants was filed, and seven days later a judgment pursuant to said stipulation was entered against all of the defendants”. By such stipulation, which was dated January 10, 1930, and which was signed by the attorneys who then represented the respective parties to the action, it was agreed that plaintiff was the owner of and entitled to possession of the property in question; “that possession of said premises is to be delivered up to the plaintiff on or before the 9th day of March, 1930; that if the premises are not so delivered up, the plaintiff shall have a writ of possession issued on the 10th day of March, 1930, or as soon thereafter as the plaintiff may elect; that each of the parties hereto are to pay their own costs incurred herein; that the plaintiff is not entitled to the dam

[139]

ages prayed for in his complaint”. (Treble damages.) On March 7, 1930, or (according to the terms of said stipulation) two days before the rightful possession of defendants of said property would have expired, defendant Spaulding presented to the trial court his notice of motion to vacate the judgment which, in accordance with the stipulation of the parties to the action, theretofore had been entered therein. In substance, the grounds of the motion were that, “without the knowledge or consent of petitioner (Spaulding), . . . and contrary to his wishes and contrary to the interest of said petitioner”, his then attorney in the action signed the stipulation by virtue of which the judgment was entered against said defendant. In response to said motion the attorney for plaintiff filed his affidavit wherein he deposed “that the interest of W. A. Spaulding (appellant) is the same as that of the other defendants herein; that immediately after the stipulation was executed said W. A. Spaulding was in the office of this affiant, and also called on him at his place of residence. . . . That said W. A. Spaulding, after said judgment was docketed and entered, appeared at your affiant’s office, in the company of Arthur C. Webb, his now attorney; ...”