Stoutenborough v. Board of Education

Belcher, C. The plaintiffs commenced this action in March, 1876, to quiet their title to a lot of land in the city and county of San Francisco. In due time an answer and cross-complaint were filed, setting up the defendant’s ownership of the lot, and thereafter an answer to the cross-complaint was filed denying the defendant’s ownership, and setting up the statute of limitations.

On July 18, 1881, an order was entered by the clerk in the minutes of the court, which, after setting out the title of the court and cause, reads as follows:

“This cause was called on the general calendar this day, and, it appearing to the court that the same has been settled, it is ordered that the said action be and the same is hereby dismissed.”

Nothing further appears to have been done in the case until September 20, 1892, when a formal judgment of dismissal was recorded and a judgment-roll made up and certified by the clerk.

In January, 1893, the plaintiffs served on defendant and filed in court a notice that on a day named they would move the court to set aside and vacate the said judgment of September 20, 1892, also to set aside and vacate the said order of July 18, 1881, and to enter an order nunc pro tunc, as of August 4, 1880, reading as follows, after [666]setting out the title of the cause: “On motion of plaintiffs made in open court the above-entitled cause is hereby dismissed.”

The notice stated that the motion would be made upon the grounds that the said judgment and order were entered inadvertently and without notice, and that the cause had been dismissed in open court on August 4,1880, and the court had lost jurisdiction to make said order of July 18, 1881.

The motion was submitted for decision upon affidavits and exhibits presented and filed by the plaintiffs — no counter-affidavits or proofs of any kind were offered— and on February 20,1893, “the court granted plaintiffsr motion on the payment of the sum of four dollars, which sum was paid, and received and receipted for by the attorney for defendant.” From the order thus made this appeal is prosecuted.

It appears from the affidavits and exhibits introduced that in April, 1879, the attorney for defendant submitted to it a written opinion, in which he stated that, after a thorough examination of the matter, “I am satisfied that the board has no title to. the property in question.” And, after setting out the facts shown by his examination, he concluded by saying: “My opinion is ... . the legal title is in the plaintiffs, and that it would be useless expense to defend the action.”