Security Loan and Trust Co. v. Estudillo

THE COURT.

Appeal from order denying motion to set aside default and vacate judgment and decree of foreclosure.

In May, 1892, the plaintiff loaned to defendants $12,675, for which defendants gave their notes secured by mortgage. In May, 1898, the plaintiff became dissatisfied with the loan, as a

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large amount of interest had accumulated and remained unpaid. Defendants then employed Wilfred M. Peck as their attorney, and a series of negotiations in regard to proposed settlements followed, necessitating delays. The matters were not settled, and finally, in October, 1898, plaintiff began an action to foreclose the mortgage, and the summons was duly served upon defendants. The amount then due was over seventeen thousand dollars.

Upon the application of defendants’ attorney, various delays and extensions were granted. Finally, defendants filed a demurrer to the complaint.

On December 20, 1898, plaintiff became desirous of proceeding with the foreclosure, and after so notifying defendants’ attorneys, the following stipulation was entered into: —

“It is stipulated by and between the plaintiff in the above-entitled action, on the one hand, and the defendants, Francisco Estudillo and Felicitas Estudillo, on the other, by their respective counsel duly authorized thereto, that the demurrer of the said defendants to the plaintiff’s complaint, heretofore filed in said action, may bé forthwith overruled by the above-entitled court, and that said defendants may have twenty days’ time

from this date

within which to file and serve their answer in said action.

“ Dated December 20,1898. R. H. F. Varied,

“ Attorney for Plaintiff-.

“ Wilfred M. Peck,

“Attorney for Francisco Estudillo and Felicitas Estudillo.’*

Defendants’ attorney agreed that he would have a minute order entered upon the above stipulation overruling the demurrer, but by oversight, or otherwise, neglected to do so. Plaintiff’s attorney became ill for several weeks, and further delays resulted. Negotiations were resumed, and the attorney for defendants desired to secure from plaintiff an agreement to waive a deficiency Judgment. The plaintiff refused to make such agreement or to give further time. Thereupon, on the stipulation of December 20,1898, and on February 8, 1899, a minute order was entered, of which the following is a copy: “In accordance with the stipulation filed herein by counsel for plaintiff and defendants, it is hereby ordered that the demurrer of Francisco Estudillo and Felicitas Estudillo be overruled and twenty days given to answer.”