California Trust Co. v. Garbett

TUTTLE, J. This is an appeal from an order denying the motion of appellant, under section 473 of the Code of Civil Procedure, to set aside and vacate a written abandonment of an appeal. In support of the motion, appellant relies upon the affidavit of her counsel and the records and files of the action. No counter-affidavit was filed by respondent. There is no dispute as to the facts upon which the application was based. There is in reality only one appellant, who is sued as an individual and also as executrix.

On September 2, 1938, a judgment in the above entitled action was entered against appellant in the Superior Court of Los Angeles County. The pleadings are not in the record before this court. From the affidavit filed by appellant, and the court’s findings, it appears that the action was brought by plaintiff, as trustee under an express trust. It was alleged in the complaint that an actual controversy existed between [109]appellant and Occidental Petroleum Corporation as to their rights under said trust. Appellant, in her pleading, set up facts to show that the trust agreement was obtained through menace and undue influence. Respondent set up the statute of limitations as one of the defenses. The court found that the action was barred by said statute, and also that there was no fraud, duress or undue influence used in the preparation and execution of said trust agreement. It was adjudged that appellant take nothing by reason of the action. An appeal was taken from said judgment to the Supreme Court. Thereafter, and on February 8, 1939, appellant filed an abandonment of said appeal. It appears that three other actions of a similar nature, but each with a different plaintiff, were filed in the superior court, and one of such actions was filed in the United States District Court, Southern District of California. Counsel for appellant did not come into the cases until January 5, 1939, and was unfamiliar with the affairs of appellant prior to said date.

When the action in the federal court was tried on March 15, 1939, the court held that as the judgment in the state court had become final, it was a bar to the action, and rendered judgment against appellant. Appellant very frankly states her position to be as follows:

“Thus it appears Leal Garbett, appellant herein, is in the anomalous position of seeking relief of this court from an order denying her motion to set aside and vacate her abandonment of appeal theretofore filed and to reinstate her appeal from a judgment rendered against her, while being, at the same time, disinclined to prosecute such appeal. The seeming anomaly of her position is more apparent than real, however, as a thoughtful weighing of the facts will disclose. Appellant is, to state it briefly, forced to this appeal in order to protect other litigation now being prosecuted by her, from the plea of res adjudicata by respondent herein. This the iower court did not fully comprehend when it denied the motion, the effect of which denial was not confined solely to this action, but very materially affected four others, involving large sums of money. Three of those actions are now before this court on appeal from the judgment. ... In this action the statute commenced to run from the date of the trust as to both appellant and her husband, and some seven years having elapsed, it is apparent, unless some reason appear to stay the