Sheehan v. Osborne

SMITH, C. This is an appeal from an order denying the appellant’s motion to set aside a judgment of dismissal of date February 17, 1898. The dismissal was entered by the plaintiff’s attorney, with the consent of the appellant, but it is claimed by the latter that in giving his consent he acted under a misapprehension of the law and of the facts, and of his obligations to parties represented by him, and for whose benefit the suit was brought. The dismissal suit was brought by Block, tax collector of the city and county of San Francisco, with the other plaintiffs, to set aside a judgment of date May 25, 1881, recovered by the defendant Osborne and the predecessors in title of defendants Schweitzer and the Crocker Estate Company against Tillson, then tax collector, adjudging the assessment known as the “Dupont Street Assessment” to be void, and enjoining the defendant and his successors in office from proceeding under the assessment to sell the lands of the plaintiffs therein. The present plaintiff Sheehan was substituted, pending the motion, as successor in office of Block. The other plaintiffs are owners and holders of Du[981]pont street bonds, and sued in their own behalf and in behalf of all other owners and holders of such bonds. The case alleged in the complaint is substantially as follows: Prior to the date of the judgment in question, there were pending in the superior court of San Francisco against the tax collector twelve other suits in which the questions involved and the attorneys were the same as in the suit in question, and it had been stipulated in writing that two of these suits, namely, Lent v. Tillson and another, should be tried together as representative cases, the others to abide the result, and in each a like judgment in the trial court and on appeal be entered. The suits named were accordingly tried, and judgments entered for the plaintiffs, and thereupon judgments to the same effect were entered in the other cases, including the case in question here. Thereafter the judgments in the two representative cases were reversed by this court, whose judgment was affirmed by the supreme court of the United States: Lent v. Tillson, 72 Cal. 404, 14 Pac. 71, 140 U. S. 316, 35 L. Ed. 419, 11 Sup. Ct. Rep. 825. The remittitur was filed July 30, 1891, and the suit brought July 29, 1895. The stipulation, it is alleged, was by inadvertence not filed, and has been lost. According to the stipulation the judgment in question should have been set aside, and judgment in accordance with the decision of this court entered. But this was not done. Numerous affidavits were filed by the parties, which on some points sharply conflict; but it is claimed by the appellant that on the ultimate question involved there was no substantial conflict, and that it was an abuse of discretion in the court to deny the motion. The points urged by the respondents, except as to order of statement, are as follows: (1) The term of office of appellant having expired, this appeal, it is claimed, cannot be further prosecuted; nor can the present tax collector, who was elected under the charter, be substituted. (2) The affidavits being conflicting, the discretion exercised by the lower court cannot be reviewed. (3) The plaintiff’s affidavit does not show a mistake, but, if anything, a fraud perpetrated upon plain- ' tiff .... by his own counsel. (4) The motion should have been denied on the ground of laches. (5) The plaintiff Block had no interest in the litigation, and, being thus a mere nominal party, was not injured; nor (6) could he control the suit. Hence (7) plaintiff’s attorney had power to dismiss