Raymond v. McMullen

California Supreme Court Jul 1, 1891 No. No. 14357Published

Before: Harrison

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Holding. The court held that a stipulation for an extension of time to file a transcript is unenforceable when the consideration for that agreement—the appellant's promise to litigate a related case to a final decision—has failed due to the appellant's voluntary dismissal of that related appeal.

Issues

Whether a stipulation for an extension of time to file a transcript is binding when the underlying consideration has failed.
Whether evidence outside the written terms of a stipulation is admissible to prove the consideration for the agreement.

Disposition. Appeal dismissed.

Quotations verified verbatim against the opinion

“A stipulation is only an agreement, and, as in the case of any other agreement, not only can the consideration for making it be established outside of the agreement itself, but it can also be shown that such consideration has failed”

“we hold, therefore, that inasmuch as the consideration for the stipulation has failed, it cannot be invoked as binding upon the respondent, and that he is entitled to have the appeal herein dismissed”

Synopsis

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Harrison, J. —Motion to dismiss the appeal.

The appeal in this case was taken January 29, 1889. At the same time appeals were taken on behalf of the same appellants in several other actions involving the same or similar questions, one of 'which actions was Hartshorne v. McMullen; and on the 2d of February, 1889, at the request of the attorney for the appellants, the attorney for the respondent made the following stipulation: —■

[123]“ In the Supreme Court of the State of California.

“ Frances B. Raymond, Respondent, v. J. McMullen et al., Appellants.

“ It is hereby stipulated that the appellants may have ten (10) days after the filing of the remittitur in the superior court of the city and county of San Francisco, in Hartshorne v. McMullen et al., on appeal to this court from the judgment and order denying the motion of defendants for a new trial, within which to file and serve their transcript on appeal herein.

“ Taylor & Haight,

“ Attorneys for Respondent.”

The transcript in Hartshorne v. McMullen was filed in this court August 27, 1889, and the cause was placed upon the calendar of this court for the January session of the present year, and set down to be argued February 19, 1891. No points or authorities were filed on behalf of appellants, as required by rule 2 of this court, and on the 17tli of February, upon the ex parte motion of the appellants, the appeal was dismissed. Prior to the issuing of remittitur thereon, the respondent made a motion to dismiss the appeal in this cause, upon the ground that no transcript had been filed in this court; and in response to the above stipulation, relied upon by the appellants in resisting his motion, contends that the consideration upon which the stipulation was given has failed, and that he is not bound thereby. In support of this contention he presents an affidavit wherein he states “that soon after said appeals were perfected, Mr. R-Percy Wright, the attorney for defendants and appellants, came to the office of this affiant and represented to affiant that it would cost a good deal of money to print and file the transcripts on appeal in all of said actions, and that it was useless to do so, as one case in each set of said cases would probably determine all of the rest, and proposed to affiant that the transcripts in two of the said cases only be printed and filed, and that the ne

Raymond v. McMullen

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