Galvin v. Palmer

HARRISON, J.

A judgment was rendered by the superior court in the above-entitled cause, May 3, 1893, declaring the defendant to he the owner in fee and entitled to the immediate possession of certain real property in San Francisco, and that he recover possession of the same from the plaintiffs, and each of them. A new trial was afterwards granted by said court, and upon an appeal therefrom to this court, that order was reversed, and a

remittitur

issued to the superior court, June 27, 1896.

(Galvin

v.

Palmer,

113 Cal. 46.) A writ of error after-wards issued thereon-to this court, out of the supreme court of the United States, was dismissed, and the mandate of that court remanding the cause was filed in this court, July 11,1898, and a certified copy thereof was filed in the superior court, July 19,1898. The defendant then applied, to the superior court for a writ of execution for the enforcement of said judgment. After notice of this motion had been given, the plaintiffs gave notice of a motion on their behalf for an order vacating the judgment, or perpetually staying its execution. At the hearing before the superior court, the defendant offered, in support of his motion, the aforesaid judgment in the action, with the

remittitur

from this court reversing the order granting a new trial, and the mandate of the supreme court of the United States dismissing the writ of error. The plaintiffs, in support of their motion, showed that a judgment had been previously entered in the action, April 27,1893, and also presented an affidavit of one of the plaintiffs to the effect that he had no knowledge of the entry of the judgment of May 3d, or of any other judgment in the cause than that of April 27th, until after the present motion for a writ of possession, and that his attorney had informed him that he had no knowledge of the judgment of April 27th, or of any other judgment than that of May 3d. Across the face of the judgment of April 27th

[428]

was written: “Judgment vacated and set aside by order of the court made and filed herein, May 3, 1893.” It was also shown that after the entry of .this judgment the court made an order,reciting therein that it had been entered by the clerk without any direction of the court therefor, and that it was incomplete and defective, and directing that the entry thereof be vacated, and that the clerk enter in lieu thereof such judgment as' the court might afterwards decree. The judgment of May 3d was thereafter signed by the judge and entered by .the clerk. After hearing the two motions, the court made an order denying that of the plaintiffs and granting that of the defendant. From this order the plaintiffs have appealed.