Garoutte v. Haley

Harrison, J. Application for a writ of mandate.

In an action brought by the petitioner against Stephen Williamson et al. in the superior court for the city and county of San Francisco judgment was entered January 31, 1894, in favor of the petitioner for the sum of three thousand eight hundred and ninety-one dollars, and twenty-one cents, and three hundred and sixty-six dollars costs of suit. A motion for a new trial was made by the defendants, and, after argument thereon, an order was entered in the minutes of the court July 31, 1894, granting said motion. August 13, 1894, the court made and caused to be entered in its minutes the following order:

“The plaintiff’s motion to amend the order granting a new trial having been continued until Monday, the 13th of August, 1894, and having come on regularly to be heard on that day, R. Y. Hayne, Esq., appearing for the plaintiff, and no one appearing for the defendants, and it appearing to the court that the order granting a new trial heretofore entered in said cause does not correctly set forth the grounds upon which the court acted in making said order, now, therefore, it is ordered upon plaintiff’s said motion that said order granting a new trial be, and the same is, hereby amended so as to read as follows:

“ [Title of Court and Cause.]

■ “ In this action the motion for a new trial on file herein having been heretofore submitted to the court for consideration and decision, and taken under advisement, and now the court having fully considered the same, and being fully advised therein, it is ordered by [500]the court that said motion be, and the same is, hereby granted upon the grounds .... [stating them]; and it-is further ordered, as a condition of the order granting a new trial, that the defendants herein pay to plaintiff herein, within twenty-five days from July 31, 1894, the plaintiff’s costs of suit, amounting to the sum of two hundred and twenty-six ($226) dollars; provided, the plaintiff file within twenty days from said July 31,1894, a written consent not to prosecute any appeal from the said order granting a new trial, but to either take a new trial of said action or to dismiss the same.”

Within the time designated therefor in this order the plaintiff filed a waiver of his appeal and right to appeal from said order, but the defendants did not pay the sum of two hundred and twenty-six dollars named in the order. September 17, 1894, the petitioner applied to the respondent, as clerk of said court, to issue an execution upon the judgment, and upon his refusal the present application was made for a writ of mandate requiring him to issue such execution.