Gregory v. Haynes

California Supreme Court Jul 1, 1863Published

Before: Norton

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Holding. The court held that a judgment rendered in favor of an executor following the death of the original plaintiff was valid despite clerical errors in the title, and that a conditional order to vacate said judgment never took effect because the conditions were not met.

Issues

Whether a judgment is void if it fails to formally substitute the executor's name for the deceased plaintiff's name in the judgment title.
Whether a conditional order to vacate a judgment takes effect if the required costs are never paid.
Whether a court's subsequent order declaring that a prior judgment remains in effect is binding on the validity of that judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The continuing the name of Wenborn, instead of inserting that of Webb, executor, as plaintiff, in the title of the judgment or order in which this recital is contained, and also in the more formal judgment, was an error of form, not rendering the judgment void.”

“It was granted upon the condition of payment of all the costs. It does not appear nor is it claimed that any costs were ever paid.”

Synopsis

Where the plaintiff in an action died before trial, and a subsequent order for judgment contained a recital as follows, “ This action having been continued in consequence of the death of the plaintiff, by his executor, Samuel Webb, and the jury having found a verdict for plaintiff/’ and then awarded judgment in favor of the plaintiff: Held, that the recital sufficiently showed a suggestion of the death of the original plaintiff and a continuance or revival of the cause in the name of the executor.

The continuance of the name of a deceased plaintiff instead of that of his executor, in a judgment rendered after the substitution, is an error of form only, and does not make the judgment void.

Where a motion to set aside a judgment is granted “on payment of all costs,” the judgment remains in force until the costs are paid.

A failure by the opposing party to file his cost bill, or to give notice under a rule of Court allowing five days after notice for payment of the costs, would not operate to make the vacation of the judgment absolute.

After a conditional order to set aside a judgment, the Court in deciding a motion to place the cause on the calendar for trial, “ orders that said motion be and the same is hereby denied, and thejudgment will remainHeld, that this was a distinct adjudication, that the previous order had not taken effect; and held further, that this order directing that the judgment remain, being the last in the case and not having been appealed from, it deprived of all force any previous order in reference to vacating the judgment.

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

This is an action of ejectment in which the plaintiff deraigns a title by a grant from the Pueblo of San Francisco and sundry mesne conveyances to one Sarah Boston, and by a deed from her and her husband, dated June 3d, 1854, to David Calderwood, and by sundry mesne conveyances from Calderwood to the plaintiff.

The defendants claim title under a deed from said Sarah Boston and her husband to one Wenborn, of a date prior to them deed to Calderwood. The deed to Wenborn is claimed to have been executed by one Strathern, under a power of attorney from Sarah Boston and her husband, but which being lost, an action was instituted by Wenborn against Sarah Boston and her husband to quiet his title, in which a judgment was rendered in favor of the plaintiff.

Whether this judgment was valid when pronounced and is still in force, are the only material questions in the case.

The objection urged to the validity of the judgment is, that the plaintiff, Wenborn, had died before the trial and verdict, but that the proceedings were continued and judgment entered in his name as plaintiff. It appears, however, that after the trial the Court made a judgment or order with this recital, to wit: “ This action having been continued, in consequence of the death of plaintiff, by [446]his executor, Samuel Webb, and the jury having found a verdict for the plaintiff,” and then judgment is awarded in favor of the plaintiff. Another judgment appears subsequent in order, but of the same date, in favor of the plaintiff, and both judgments are entitled in the name of Wenborn as plaintiff. This judgment was before this Court in the case of Gregory v. Haynes, reported in 13th Cal. 591, when it was decided to be a valid judgment in favor of Webb as executor of Wenborn. The Court say: “ We think this recital clearly shows, whether with formality or not, the suggestion of the death of the original plaintiff, and a continuance of the cause or a revival of it in the name of the executor. If there was any irregularity in all this, it cannot be corrected in this collateral way.” The continuing the name of Wenborn, instead of inserting that of Webb, executor, as plaintiff, in the title of the judgment or order in which this recital is contained, and also in the more formal judgment, was an error of form, not rendering the judgment void. The judgment was therefore effectual to quiet the title of Webb, as executor of the will of Wenborn, against the defendants Sarah Boston and her husband. This action was commenced and a notice of his pendens filed before the conveyance of Sarah Boston and her husband to Calderwood, and the judgment was binding upon him and those claiming under him.

Gregory v. Haynes

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