Lidberg v. E. T. Leiter & Son

NOURSE, P. J.

This is an appeal from an order deny-in the motion of the Zurich General Accident & Liability Insurance Company to set aside a satisfaction of judgment and consent thereto, and for a lien upon that judgment in favor of the insurance company.

The plaintiff Lidberg was injured while in the course of his employment as an interior decorator. In due course the Industrial Accident Commission awarded him compensation amounting to $3,145.33, of which sum $2,291.30 was found to have been paid. Thereafter the plaintiff commenced this

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action against the defendants Leiter & Son and Western Asbestos Magnesia Company in tort for damages resulting from said injuries. Notice of this action was given to the employer and to his insurance carrier, the Zurich Company. The case consumed four days of trial during which the attorney for the Zurich Company was continually present. At the end of the fourth day the matter was compromised and by written stipulation $10,000 was paid in full satisfaction of all claims arising out of the accident. Counsel for the Zurich Company sat in on all the negotiations leading to this settlement which were had in open court or in the judge’s chambers. By the terms of the settlement the full sum of $10,000 was deposited in escrow subject to a number of conditions which are not of interest here, except the condition that plaintiff should commence a suit to quiet title to the fund against all parties to the suit and against the Zurich Company. Judgment was thereupon duly entered in accordance with this stipulation. At the same time this stipulation was filed the plaintiff requested the consent of the trial court to a satisfaction of the judgment. Such consent was given in writing by the trial court in the presence of all parties and satisfaction of the judgment was accordingly executed and filed. Thereafter the Zurich Company filed its notice of motion to set aside the satisfaction of the judgment upon the general grounds mentioned in section 473 of the Code of Civil Procedure of inadvertence, error and mistake. During the hearing upon that motion the foregoing facts were either shown by affidavit or, having occurred in the presence of the same trial judge, were agreed to in open court.. The motion was denied upon the grounds that the Zurich Company had not moved within due season to attach its lien upon the judgment.