Antonsen v. Pacific Container Co.

SPENCE, J. This is an appeal by defendants from a judgment in favor of plaintiff in an action brought to set aside two judgments entered in a prior action.

Plaintiff had previously made a motion in the prior action to set aside said judgments which motion was denied. The order denying said motion was affirmed on appeal. (Antonsen v. San Francisco Container Co., 20 Cal. App. (2d) 214 [66 Pac. (2d) 716].) The present action was commenced upon the theory that plaintiff was entitled under the facts pleaded to have said judgments set aside in an independent action in equity. The issues presented in this action were different from those presented on the motion in said prior action and the decision on the motion in said prior action did not preclude the granting of equitable relief in the present case. (Bacon v. Bacon, 150 Cal. 477 [89 Pac. 317] ; Estudillo v. Security Loan & Trust Co., 149 Cal. 556 [87 Pac. 19]; Herd v. Tuohy, 133 Cal. 55 [65 Pac. 139] ; 15 Cal. Jur. 27).

On this appeal, defendants contend that the complaint did not state a cause of action; that the evidence was insufficient to warrant the granting of any relief to plaintiff; and that plaintiffs alleged cause of action was barred. The consideration of these contentions requires a statement of facts in addition to the statement contained in the opinion on the appeal in the prior action. (Antonsen v. San Francisco Container Co., supra.)

In 1931, plaintiff, a resident of the State of Washington, gave to one Seely, a resident of the State of California, a power of attorney which followed generally the wording of the ordinary general power of attorney but was qualified by the words “ . . . for the purpose of realizing on the undersigned’s interests, without subjecting him to liability.” The parties discuss the question of whether the power thus granted [537]was sufficient to authorize the bringing of the action hereinafter referred to but, under the views hereinafter expressed, this question becomes immaterial

Without the knowledge of plaintiff and without any direction or authorization from plaintiff, except as might be found in said power of attorney, Seely employed William F. Herron, an attorney, and commenced the above mentioned action entitled “Antonsen v. San Francisco Container Co. et al.” in March, 1931, in the superior court in San Francisco. Plaintiff did not learn that any action had been filed until 1936, being approximately five years after the filing of said action.