Johnson v. Sweeney

Paterson, J. The defendant moved in the court below for an order setting aside a judgment taken against him my default, entered in open court on an ex parte application of plaintiff on April 28th, and in support of his motion filed an affidavit made by his attorney, showing, among other things, the following facts: The summons was served upon defendant in the county where the action was commenced, on April 17, 1891. The defendant had, therefore, to and including the twenty-seventh day of April, 1891, to appear and answer or demur. His counsel was engaged in the trial of a case in the superior court on the last day for answering, and in the evening after adjournment, while riding to Vacaville with the plaintiff’s attorney, he asked the latter if he would accept service of a general demurrer, waive copy, and give him more time in which to prepare and serve a special demurrer, saying that he would [306]like until Saturday, May 2d. Thereupon the attorney for plaintiff said he could have until Saturday, or longer if he desired it, in which to file a special demurrer, and that he would accept service of a general demurrer that evening. When the demurrer was presented to the attorney for the plaintiff in the evening, he indorsed upon it his acceptance of service, qualified, however, by the words, “reserving all rights in the premises regarding default in the within-entitled action.” The attorney for defendant did not notice the fact that plaintiff’s attorney had qualified his acceptance of service of the demurrer until a late hour that night. On the following morning the demurrer, with proof of service, was filed in the clerk’s office,—before default was entered. The affidavit states that the affiant relied on the conversation with the attorney for the plaintiff as an agreement to give the defendant until Saturday to prepare a special demurrer. No counter-affidavits were filed.

We think that upon this showing the motion ought to have been granted.

It is a general rule that a stipulation of counsel cannot be enforced unless put in writing, or entered in the minutes of the court; but where an oral agreement for an extension of time to answer or demur is admitted, and has been relied on by the defendant, a judgment by default, taken against him in violation of the terms of the stipulation, will be set aside. If the party against whom a verbal stipulation is invoked denies that such a stipulation was made, the court will not hear the parties for the purpose of settling the dispute; but where the facts relied upon by the moving party are not controverted, there is no reason for the application of the rule, and it is too late to repudiate the stipulation after it has been executed. (People v. Stephens, 52 N. Y. 310.) In Huart v. Goyeneche, 56 Cal. 429, it was held that the defendant was not guilty of negligence in relying upon an oral promise for an extension of time tó answer; and an order refusing to set aside a judgment taken against him by default while