Ladd v. Samuels

Sharpstein, J.: On the 2nd day of November, 1874, respondent Samuels commenced an action against the appellant in the District Court of the Third Judicial District, in and for the County of Alameda, to recover $854.34, which was alleged to be due upon a promissory note, and $308.56 for goods, wares, etc., and $25 paid by plaintiff on defendant’s order to one Weymouth, together with interest on these several sums.

The appellant, in her answer to the complaint in that action, admitted the making of the note, but denied on information and belief that there was more than $500 due from her to Samuels at the time of making it, and upon information and belief denied the other alleged indebtedness. On the 3rd of May, 1875, and pending said action, respondent Samuels assigned to respondent Hall the claims and demands sued upon in said action, with a stipulation that Samuels would prosecute said action to final judgment. On the 29th day of October, 1875, upon the stipulation of the parties in open Court, a judgment was entered in [358]that action in favor of the respondent Samuels, and against the appellant, for the sum of $1,000.

On the 23rd of July, 1877, the appellant commenced an action to have the execution which had been issued upon the judgment entered upon said stipulation set aside, and said judgment decreed to be satisfied and extinguished, and to have the respondents and each of them enjoined from enforcing the collection of it, and for such further and other relief as might be deemed just. The grounds upon which this relief was demanded are substantially as follows:

That the claim or account upon which said judgment was recovered had been fully settled and paid prior to the rendition of said judgment, and that the plaintiff did not know, at the time said stipulation for judgment was entered into, that said claim had been settled and paid, nor was it in her power at any previous time thereto to ascertain that fact; because the evidence of such payment and settlement was exclusively in the knowledge, possession, and control of said Samuels, “ who fraudulently concealed, withheld, and suppressed the same, at and before the rendition and entry of said judgment.” And that plaintiff did not obtain information of said payment and settlement until after it was too late to move for a new trial or apply to the Court for relief. She further alleged that the assignment from Samuels to Hall was collusive; and that the latter, at the date of said assignment, “ had full knowledge of the fact of the satisfaction of said pretended account, and of the equities against said judgment.”