Silversmith v. Brawley

CRAIL, P. J. This is an appeal from (1) an order dated March 1, 1938, denying the motion of the plaintiff to vacate and set aside a judgment on a verdict and (2) an order that a stipulation providing for the dismissal of an appeal dated October 9, 1936, be filed in the superior court nunc pro tunc as of March 15, 1937.

This case has „been tried twice. Each time the jury returned a verdict for the defendant, and judgment was entered thereon. After the first trial the plaintiff moved for a new trial and this motion was granted. On September 4, 1936, defendant filed notice of appeal from the order [268]granting a new trial. No transcript or bill of exceptions was ever filed in the appeal.

On October 9, 1936, the parties agreed to abandon and withdraw the appeal and try the case again in the superior court, entering into the following stipulation: “In the District Court of Appeal, Second Appellate District, State of California. Henry Silversmith, plaintiff and respondent, vs. A. D. Brawley, defendant and appellant. No...... STIPULATION TO DISMISS APPEAL. It is hereby stipulated by and between the parties hereto through their respective attorneys that the appeal now pending in the above entitled Court may and the same shall be ordered dismissed. It is further stipulated that the remittitur shall issue forthwith. Dated this 9th day of October, 1936.”

Soon thereafter the parties by their respective counsel signed and filed in the superior court a setting card in which they asked that the case be set in the superior court and in which they stated that “the cause is at issue”. On March 5, 1937, the court made a minute order that “by stipulation and order of Court” the ease was set down for trial for March 15, 1937. Thereupon the ease was again tried before a jury and judgment upon the verdict of the jury entered in favor of the defendant. Motion for new trial was denied.

On August 4, 1937, new counsel was substituted as attorney for plaintiff, who made the motion to vacate and set aside the second judgment. When the matter came on for hearing before the trial court the affidavit of the former attorney for the plaintiff was offered in evidence, which read as follows: “That on or about the 9th day of October, 1936, affiant prepared the stipulation to dismiss the appeal then pending in the District Court of Appeal, Second Appellate District, which said stipulation is annexed to the affidavit of Kenneth J. Murphy, on file herein; that affiant presented the same to the said Kenneth J. Murphy, procured his signature to the same and left him a true copy thereof; that affiant on said day caused to be certified the statement of L. E. Lamp ton, County Clerk, which said certificate is annexed to the said affidavit of Kenneth J. Murphy, and on said day presented them for filing to the clerk of the said District Court of Appeal; that the said clerk informed affiant that due to the enactment of section 954a