Cooper v. Gordon
Before: Temple
Synopsis
Action—Unfiled Stipulation for Judgment—Consent to Delay— —Estoppel to Urge Dismissal.—An unfiled stipulation that the plaintiff in an action may enter judgment against the defendant for a stipulated sum at any time, and that execution should be stayed while specified payments were made, is in lieu of an answer admitting the allegations of the complaint, and is a consent to the jurisdiction of the court, and to the entry of the appearance of the defendant, and of judgment after the time limited by statute, and estops the defendant from insisting upon a dismissal of the action, on the ground that plaintiff has not served the summons within three years, or prosecuted the action with diligence.
Id.—Time for Appearance—Waiver of Statute—Construction of Code.—A defendant may waive the provisions of section 406 and of subdivision 7 of section 581 of the Code of Civil Procedure, in regard to the time for his appearance, which are intended to relieve defendants from the assertion of stale demands and not to preclude a subsequent appearance without objection, or by-consent of parties.
Id.—Use of Stipulations.—Though stipulations do not bind the parties until filed, yet, when filed, they do bind the parties, and may then be used to show that a party has violated his stipulation, and as a basis of relief to the person who has been injured by trusting to it.
Id.—Dismissal for Want of Prosecution—Vacation of Judgment by Assignee—Proof of Stipulations.—An action is properly dismissed for want of prosecution where no service of summons appears, and nothing has been done in the action for nearly thirteen years; but the judgment of dismissal is properly vacated upon motion of an assignee of the cause of action, upon showing that on the day after the commencement of the action the plaintiff and defendant had stipulated that judgment might be entered at any time, that the defendant had stipulated likewise with a former assignee of the cause of action two years thereafter, and also with the moving party as a subsequent assignee, ten years after the suit was brought, the last stipulation specifying a less rate of interest.
Id.—Proof to Warrant Judgment.—Where the genuineness of the signatures to the stipulations was admitted merely for the purpose of the motion to vacate the judgment of dismissal, the court should require proof of such genuineness, and of the amount for which the plaintiff is entitled to judgment, before entering the judgment under the stipulations.
TEMPLE, J.— This action was commenced on the fifth day .of April, 1883, and summons was issued on the same day. The summons, so far as appears, was never served on any of the defendants, and no return thereof was ever made or filed. The suit was to foreclose a chattel mortgage on a printing press and other contents of a printing office, given to secure an indebtedness for defendant Gordon, according to the terms of a promissory note which is set out in the complaint. As to the other defendants, the complaint merely avers that they have, or claim to have, some interest in the property. So far as the records of the court disclosed, nothing further was done in the case until the eighteenth day' of March, 1896, when, on motion of [299]Thomas W. Howlin, attorney, who appeared specially for the purpose, the suit was dismissed, “pursuant to subdivision 7 of section 581 of the Code of Civil Procedure.” As nearly thirteen years had elapsed since the taking out of summons, and nothing further appeared to have been done in the ease, the order was eminently proper.
On the first day of May, 1896, one J. H. Harper, in the name of plaintiff and as his assignee, moved to vacate the order and judgment of dismissal on the ground that it was obtained by fraud and deceit and through mistake, inadvertence, and excusable neglect on the part of plaintiff. On the hearing it was shown that on April 6, 1883, one day after suit was commenced, plaintiff and defendant entered into a written stipulation to the effect that plaintiff could enter judgment at any time in the action for a stipulated amount, but was to grant a stay of execution upon certain payments being made by Gordon.
Also that on the twenty-sixth day of March, 1885, Gordon again, in writing, stipulated with one George M. Wood, to whom the claim of plaintiff had been assigned, that he, Wood, could have judgment entered at any time for a sum stated. A stay of execution was also stipulated.
On the thirteenth day of September, 1893, another stipulation was made in writing by Gordon and J. H. Harper, which recites that Harper had become the assignee of plaintiff, and stipulates that Harper may take judgment in the action at any time. The amount due is also stipulated, and also certain payments to be made, and a rate of interest less than that called for in the note.
Defendant Gordon appeared in response to the motion and read his own affidavit, which, however, contains nothing of consequence.
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