Barger v. Gabriel

SCHOTTKY, J. Marvin David Barger, a minor, sustained a head injury when he was struck while riding a bicycle by a taxicab owned by Barney Gabriel, doing business as Yellow Cab Company, and driven by Lewis Hopkins. An action was commenced by Marvin Lucius Barger, father of the minor, individually, and as guardian ad litem, to recover for such injuries.

It appears from the record that on September 15, 1959, counsel informed the court that the case had been settled. The medical reports of the doctors who had examined the minor were introduced in evidence. A stipulation that judgment could be entered in favor of the plaintiffs in the amount of $3,000 was read into the record. The reporter’s transcript discloses that the court ordered that judgment be entered in accordance with the stipulation. The clerk’s minutes indicate the following: “Mrs. Leona Barger is sworn and testifies. It is orally stipulated by counsel that judgment be entered in favor of the plaintiffs and against the defendants in the sum of $3,000.00 including all costs of suit. It is so ordered by the Court. Let Judgment be entered accordingly.”

No notice of entry of judgment was served. In March 1960 a motion was made to set aside the stipulation that judgment be entered, or to set aside the judgment, or for a new trial. The basis of the motion was that a new medical report indicated that the injuries sustained by the minor were more severe than was originally thought. The trial court after a hearing denied the motion.

Plaintiffs have appealed “from the order denying their Motion to Set Aside Stipulation, Minute Order and/or Judgment and for New Trial, ...” While no separate formal judgment was entered, it is clear from the stipulation, the minute order, and the briefs of respective counsel that the entry in the minute order is regarded by them as the judgment in the action.

Appellants’ first contention is that “The judgment heretofore entered should be set aside” for the reason that a party is entitled under section 473 of the Code of Civil Procedure to be relieved of a judgment taken or entered by mistake. Appellants quote the well-settled rule that11 The law is well established that a judgment or order obtained by fraud [149]or mistake may be set aside under section 473 of the Code of Civil Procedure when the application is made within a reasonable time and the fraud or mistake proved.’’ (Vale v. Maryland Casualty Co., 101 Cal.App. 599, 602 [281 P. 1058].) Appellants also cite the case of Salazer v. Steelman, 22 Cal. App.2d 402 [71 P.2d 79], in which the court defined “mistake” as the doing of an act under an erroneous conviction, which act, but for such erroneous conviction, would not have been done.