Gundelfinger v. ComMercial

PEEK, J. The present controversy is the outgrowth of an agreement dated October 19, 1942, wherein appellant agreed to purchase from respondent corporation certain mining property located in Mariposa County. After the execution of said contract, disagreements arose concerning the effect and wording of a reservation in a deed from the respondent to appellant as provided for in said agreement. The numerous discussions between the parties were unproductive of definite results, and on May 27, 1943, the company filed suit against appellant for recovery of the possession of the premises in question and for incidental relief. Summons was served on him on June 11, 1943. He failed to appear and default was entered on July 28, 1943. Judgment thereupon was entered on September 8, 1943. On February 9, 1944, appellant filed a motion under section 473 of the Code of Civil Procedure to vacate said judgment on the grounds of mistake, inadvertence, surprise and excusable neglect, but the motion was abandoned by appellant for the reason that it was not made within the time provided therefor by said code section.

On March 6, 1944, appellant brought suit in equity against the company on two counts, the first one to set aside the default judgment on the ground of fraud, and the second for specific performance of an alleged modified agreement of sale. After submission of the case to the court sitting without a jury, findings of fact, conclusions of law and judgment were adopted and entered in favor of the company. Appellant’s motion for a new trial was granted in order to permit the introduction of further evidence, but the subsequent findings of fact, conclusions of law and judgment were for all purposes identical with those entered at the conclusion of the first hearing.

It is appellant’s contention herein that the findings are unsupported by the evidence, but neither does his own analysis thereof nor our independent search of the record sustain him in this regard.

The fraud which appellant charges appears to consist chiefly of (1) the statement alleged to have been made by Charles W. Slack, president of the company, that nothing further would be done with the litigation, that negotiations were progressing satisfactorily, and that there would be an amicable adjustment, and (2) the alleged circumstance that the attorney who was acting for appellant in certain matters was friendly toward the corporation, had an indirect interest [543]in it, and failed to protect appellant’s interests in the suit in which his default was taken.