Justice v. Oroville-Wyandotte Irrigation District

PEEK, J. This is an appeal by plaintiffs from a judgment in favor of defendants and from an order denying plaintiffs’ motion to vacate and set aside the same.

By their action plaintiffs sought to recover damages alleged to have resulted from acts of the defendant district in cleaning and rebuilding a reservoir located on plaintiffs’ land. Defendants’ answer admits the cleaning of the reservoir and the placing of materials therefrom on appellants’ land, but alleges that such work was done with the consent of plaintiffs and in accordance with their agreement as to the manner in which it should be done.

The judgment in question was entered following an oral stipulation therefor which was placed in the record by the [517]then counsel for plaintiffs. Shortly thereafter plaintiffs moved to set the stipulation aside, averring in their affidavit in support thereof that the stipulation was without their consent; that the judgment entered does not contain the provisions of the stipulation made in court; that certain provisions of the judgment as entered would cause further damage to their land. The affidavit of defendants in opposition thereto sets forth in detail the acts of the parties leading up to the stipulation. It appears from the record before us that said affidavits constituted the only evidence before the court. Since the trial court on the identical record denied the motion we must assume that it resolved all conflicts in favor of defendants and hence we will only refer to those portions of the affidavits in support of the order.

From the affidavit of defendants’ counsel it appears that plaintiffs have been represented by various attorneys and that at the request of plaintiffs the cause had been postponed on numerous occasions during the period from November, 1946, when the action was originally filed, and April, 1951, when the parties actually appeared in court. On the last-mentioned date, and after the jury had been sworn in, Mr. E. T. Manwell, the then counsel for plaintiffs, asked for a continuance. In accordance therewith, the cause was continued until May 2, 1951, at which time Manwell stated that the parties had arrived at a compromise and that the jury could be dismissed. Thereupon Manwell dictated, for the record, the stipulated agreement of the parties. Findings were waived and it was agreed that P. J. Minasian, counsel for defendants, should prepare the judgment. Concerning the question of consent it further appears from Minasian’s affidavit that when the case was called on April 30th both plaintiffs were sitting next to their attorney at the counsel table, heard the discussion between court and counsel relative to a continuance for the purpose of reaching a compromise ; that thereafter counsel for both parties adjourned to Minasian’s office and there worked out the stipulation which was later put in the record; that upon completion of the stipulation plaintiffs’ counsel took a copy thereof for presentation to plaintiffs and on the following day Manwell informed Minasian that he would call at the latter’s office early the next morning in order to work out certain minor changes in the stipulation; that the following morning both counsel met at Minasian’s office; that the directors■ of the defendant district were also in attendance, as was plaintiffs’ engineer;