Boggs v. Clark
Before: Sprague
Synopsis
Estoppel by Judgment.—A judgment, to operate as an estoppel, must be a judgment of a Court of competent jurisdiction upon the same subject matter, in a cause regularly tried on its merits, upon issues duly joined by proper pleadings in such Court, between the same parties or their privies.
Idem.—E. recovered judgment against II., foreclosing a mortgage on certain lands, and under an order of sale duly issued thereon the Sheriff sold and in due course conveyed the said lands by deed to B., who, under a writ of assistance, duly issued, procured C. to be dispossessed of a certain tract of land as being within said deed. C. subsequently procured from the Court rendering said judgment, upon proper motion and notice thereof to B., and after trial on the merits of the issues arising thereon, an order to be restored to said possession, on the ground that said tract of land was not within said deed, and was so restored, under said order, which became final. Subsequently B. brought ejectment against C. to recover said land, to which C., in answer, after setting up said facts, and that B. had and claimed no other title to said land except under said deed, ple'aded that, as between B. and C., the title thereto was res adjudicata. Held, that the facts so pleaded constituted no bar or legal defense to B.’s action against C. to recover said land, and that the Court below did not err in striking out so much of C.'s answer as setup the same.
Motion fob New Trial—Dismissal of, for Want of Prosecution.—An order denying and dismissing a motion for a new trial for want of due diligence ia bringing the same to a hearing, as required by the Practice Act, (Sec. 196,) rests in the sound discretion of the Court.
Idem.—In an action by B. against C., pending in the Seventh District Court for Napa County, in which B. recovered judgment, in said county, on the 8th of June, 3867, an order of Court was entered on the same day, by consent, that C. have sixty days in which to prepare and file statement on motion for new trial. On the nineteenth of June notice of said motion was duly filed and served, and on the sixth day of August following C. filed his statement on said motion, and gave plaintiff’s attorney notice thereof. On the first of October following B.’s attorney duly filed notice, and served the same on C.’s attorney, that, on the seventh of October, he would move the Court to dismiss said motion, on the ground that C. had not presented the same within a reasonable time after the filing of said statement. On the day'following (October second) C.’s attorney served B.’s attorney with notice that he would^proceed with his motion for a new trial on said seventh day of October. On the eighth day of October (both of said motions having been continued from the previous day) the Court granted B.’s said motion to dismiss. The term of said Court commenced in Solano County, which is in the same Judicial District and adjoins Napa County, on the 16th day of September, 1867. Held, that the Court did not so abuse its discretion in making said order as to justify its reversal.
By the Court, Sprague, J.: The new matter stricken out from defendant’s answer on motion of plaintiff, admitting the same to be true as stated, constitutes no bar to plaintiff’s right of recovery, and is no valid legal defense to his action, hence it was properly stricken out. A judgment to operate as an estoppel must he a judgment of a Court of competent jurisdiction upon the same subject matter, in a cause regularly tried on its merits upon issues duly joined by proper pleadings in such Court between the same parties or their privies. The motions and orders of the Court in the causo of Fowler & Hargrave v. Harbin et al., although the parties to this action appeared in and were interested in the result of such motions, were in no just sense judgments in an action between these parties upon issues joined in a cause pending between them. [239]These motions and orders were after judgment in a cause between other parties, and for the sole purpose of enforcing the judgment and decree of the Court previously pronounced and entered in a cause to which neither plaintiff nor defendant in this case was a party.
The order of the Court denying and dismissing defendant’s motion for a new trial, on the ground that the same was not prosecuted or brought on for hearing with due diligence, or within a reasonable time, as by statute and the rules of the Court required, was an exercise of the sound discretion of the Court, especially as applied to the questions as to whether the motion had been prosecuted or brought on for hearing with due diligence, or “at the earliest period practicable” after filing the statement. As appears by the transcript, judgment was rendered in this cause against defendant on the 8th day of June, 1867, at Mapa County, the county in which the action was brought, and on the same day an order was entered by consent of the parties, that the defendant have sixty days from the date of the entry of the judgment in which to prepare and file statement on motion for new trial-or appeal. Motice of motion to set aside the judgment and for new trial was served on plaintiff’s attorney on the 19th June, 1867, and the statement on motion for a new trial was duly filed on the 6th August, 1867, within the time granted by order of the Court, and plaintiff’s attorneys were duly notified of such filing on the same day. On the 1st day of October, 1867, plaintiff duly notified defendant’s attorney that he would move the Court on the 7th day of October, 1867, to dismiss defendant’s motion for a new trial and to strike out defendant’s statement on motion for new trial, on the ground that defendant had not presented his motion in reasonable time after filing his statement as required by statute and rules of the Court, and on the same day filed such motion and the grounds thereof.
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