San Francisco Savings Union v. Myers

McKinstry, J. The respondent moves to dismiss the appeal of the defendant McDonald on the ground that the judgment appealed from was entered “ upon the mutual consent ” of the appellant and the other parties-to the action. In the margin, opposite to the copy of the judgment contained in the transcript, appear the words: “Indorsed in lead pencil on the back of the original judgment is the following: ‘ Agreed to. Pillsbury [162]and Blanding, Lewis Shearer, William F. Herrin.’ ” The answer of defendent McDonald is subscribed, “ Wallace, Greathouse, and Blanding,” as his attorneys, for whom, after the entry of the judgment, was substituted Edward Lynch, Esq. The notice of appeal is signed, “ Edward Lynch, attorney for defendant McDonald.” There is nothing in the indorsement itself, separated from the other portions of the transcript, to, indicate that the names written in lead pencil were the names of attorneys for any of the parties. It does not appear whether they were signed before or after the judgment was rendered or entered, or, if signed before, that the words “ agreed to ” were intended to mean anything more than that the draught of the decree or judgment prepared to be presented to the judge was agreed to as properly expressing the judgment ordered by the court.

There is no recital in the judgment showing it was based on the consent of the defendant-appellant. The judgment commences with the recital: “ This cause came on regularly do be heard in open court on this seventh day of July, 1885, William Herrin, Esq., appearing for plaintiff, and Lewis Shearer, Esq., appearing as the attorney of defendants Bobinson and Meyers, and Pillsbury snd Blanding, Esqs., for defendant McDonald. The court having heard all the evidence and proofs produced herein, and duly considered the same, and being fully .advised in .the premises, and it appearing therefrom to the satisfaction of the court,” etc. Important issues -were made by the pleadings on the part of defendant McDonald, and the presumption is that the judgment which determines those issues was based upon the evidence bearing on them, and not upon the pencil memorandum made, so far as appears, after the trial was concluded.

A former motion to dismiss 'the appeal -was denied “ without prejudice.” Even if it be conceded that we would be authorized to grant the renewed motion on [163]