Sherman v. Mitchell

By the Court, Niles, J.: The action was ejectment against a number of defendants. The plaintiff had a verdict and judgment. The defendants moved for a new trial, and on the 13th of February, 1872, an order was made granting the motion, upon the following terms, expressed in the order: “ On payment by the defendants of all costs herein up to date, and on payment of two hundred dollars, the costs for opposing this motion; that said payment be made in ten days; otherwise that defendants’ motion for a new trial be denied.” On the 12th day of April, 1872, the plaintiff moved for an order denying defendants’ motion for a new trial, and vacating “ so much of the order of the 13th of February, 1872, which allowed the defendants a new trial, upon the payment of said costs and counsel fees,” upon the ground that the defendants had failed to comply with the conditions upon which the new trial was granted, by a non-payment of the costs imposed within the time prescribed. This motion was denied, and an appeal is taken from the order of denial.

From the statement accompanying the order it appears that the sum of two hundred dollars, imposed as plaintiff’s costs for resisting the motion, was paid to the Clerk of the Court by the defendants’ counsel on the twenty-first day of February. This payment is undisputed, and was a compliance with one of the prescribed conditions.

[578]It further appears that on the 5th of May, 1871, the plaintiff made and filed a satisfaction piece in due form, by which he acknowledged the receipt from Grates (one of the defendants) of the full amount of his judgment for costs, and authorized the Clerk to enter satisfaction of record. This judgment was for the amount claimed by the plaintiff as the “ costs to date ” mentioned in the conditional order granting a new trial.

If this payment was made to the plaintiff as stated in the acknowledgment, there can be no question that the conditions upon which the new trial was to be granted were fully satisfied, and the order granting the same became thereby operative; for it cannot be material that the costs were paid at a date prior to the making of the order, or that it was made by one of the defendants and not by all. The plaintiff would have received all that he had a right to demand by the terms of the order, and it could not be material to him at what time or by whom the payment was made.

We do not see how the facts alleged in the affidavit of defendant Grates can materially affect this result. The material facts stated in the affidavit are, that at the time the statement on motion for a new trial was filed, Grates, who was one of the defendants in the action, and Haggin, who was a Trustee of the Point Lobos Road Company, also a defendant, purchased the plaintiff’s claim and judgment for the sum of fifteen thousand dollars, and received a deed of all the plaintiff’s claim to the land in controversy; that this was done under the belief that the other defendants would ratify their action in the premises and contribute to the payment of the purchase money in the proportion of their respective interests in the property; that, acting upon that belief, they caused a satisfaction of the judgment for costs to be entered; that, in consequence of the purchase, no counter-affidavits on motion for new trial were filed; that