Vrooman v. Li Po Tai

Temple, J. This appeal is from a judgment of foreclosure. • The action was commenced July 23, 1877, in the district court. Summons was issued and served on the same day, but was not returned or filed until September 26, 1893. The only question involved in the appeal is whether the right to prosecute the action has been lost under the provisions of section 581 of the Code of Civil Procedure.

Li Po Tai never formally appeared in the action, but July 31,1877, Messrs. Howe and Rosenbaum procured a stipulation from plaintiff’s attorney granting an extension of time, which was filed August 6, 1877. Upon this was indorsed: “ Howe and Rosenbaum, attorneys of defendant, Li Po Tai.” By whom this indorsement was made was not shown; but, as it is the custom of lawyers to have all papers filed similarly indorsed, it is presumed that it was done by the consent and direction of the persons named. The same custom demonstrates that it was not intended as a signature in any sense.

It was shown that the same firm negotiated with plaintiff’s attorneys for a stay of proceedings, and procured a stipulation from the attorneys for the plaintiff, whereby plaintiff acknowledged the receipt of all interest due and costs which had accrued, including the fees [304]of plaintiff’s attorneys, and one thousand dollars of the principal sum due; in consideration of which an extension of thirty days was granted, and it was stipulated that another extension of thirty days would be given if defendant then paid one thousand dollars and interest; and, if defendant thereafter paid the interest monthly, monthly extensions would be granted fo^ one year, but if the defendant “ shall fail to make any of the payments aforesaid at the time above specified, the plaintiff may take his default in the action, and enter judgment therein for the amount unpaid,” etc.

Thereupon defendant made payments from time to time—the last being five hundred dollars, on the fifth day of December, 1892. And it was doubtless in consideration of these payments that plaintiff delayed his action.

On the third day of April, 1893, Li Po Tai died. An administrator having been appointed, plaintiff presented his claim against the estate, and procured a substitution of the administrator in the action. He then filed a supplemental complaint setting up the death of defendant and the presentation and rejection of his claim. To the supplemental complaint defendant interposed a general demurrer, which was overruled. He then answered, and in his answer denied that summons had ever been issued or was served on Li Po Tai, and denied that the summons had been returned or that Li Po Tai had made default. Plaintiff recovered judgment.