Seitzman v. White

HERNDON, J. This appeal is taken from the order of the trial court denying appellants’ motion to vacate and set aside a judgment entered against them pursuant to a written stipulation.

The record before us reveals that the action was commenced on December 5, 1960, when respondents herein filed their complaint seeking recovery of monies due upon a promissory note. Appellants filed a demurrer on December 19, 1960. No indication as to a ruling thereon appears, but on April 25, 1961, respondents filed an amended complaint. On May 16, 1961, appellants’ motion to strike the amended complaint was denied, and their answer was filed. On June 30, 1961, respond[171]ents filed a motion for summary judgment. No ruling on this motion was ever made by reason of the fact that the parties arrived at a settlement which was evidenced by a written instrument entitled “Stipulation For Judgment” dated July 12, 1961, and filed October 9, 1961.

This stipulation provided that respondents were to take judgment against appellants in the amount of $5,510.28, plus attorney’s fees in the sum of $500. It was provided, however, that such agreed judgment would not be entered or executed upon if appellants paid $750 upon the signing of the stipulation and $500 per month commencing August 12, 1961, and continuing monthly thereafter until paid in full. It was further stipulated that “if defendants fail to make any one payment when due plaintiffs shall immediately upon the obtaining of the affidavit of plaintiff Albert Seitzman to the effect that a payment has not been made cause this judgment to be entered and plaintiffs may then execute upon this judgment as against all defendants and duly record this judgment and proceed with any remedy plaintiffs deem advisable, for the full amount remaining due. ’ ’

Said stipulation further provided: “Defendants, by and through their respective counsel, waive all findings of fact and conclusions of law and all rights to appeal and waive any right to notice of the entry of this judgment or the filing of the same. Defendants, by and through their respective counsel, further waive any right whatsoever in the event of nonpayment of a payment when due to any objections whatsoever to the entry of the judgment, its recordation and any writs of execution levied against said judgment and waive any objections whatsoever to any affidavits to be submitted in support of the entry of the judgment as provided for herein. ’ ’

Appellants paid the initial $750 and the first monthly installment of $500. Thereafter nothing was paid. In accordance with the terms of the stipulation, judgment was entered on October 9, 1961. On November 9, 1961, appellants filed their notice of motion to vacate and set aside the judgment and for leave to file an amended answer and cross-complaint. The points and authorities in support thereof indicate that it was based upon section 473 of the Code of Civil Procedure. Most of the allegations contained in the affidavit filed in support of the motion and in the proposed answer and cross-complaint which were filed in conjunction therewith, are manifestly ineffective, because, as appellants necessarily concede, they allege facts fully known to them prior to their execution of the stipulation,