46 Cal. App. 2d 108 | Cal. Ct. App. | 1941
This is an appeal from an order denying the motion of appellant, under section 473 of the Code of Civil Procedure, to set aside and vacate a written abandonment of an appeal. In support of the motion, appellant relies upon the affidavit of her counsel and the records and files of the action. No counter-affidavit was filed by respondent. There is no dispute as to the facts upon which the application was based. There is in reality only one appellant, who is sued as an individual and also as executrix.
On September 2, 1938, a judgment in the above entitled action was entered against appellant in the Superior Court of Los Angeles County. The pleadings are not in the record before this court. From the affidavit filed by appellant, and the court’s findings, it appears that the action was brought by plaintiff, as trustee under an express trust. It was alleged in the complaint that an actual controversy existed between
When the action in the federal court was tried on March 15, 1939, the court held that as the judgment in the state court had become final, it was a bar to the action, and rendered judgment against appellant. Appellant very frankly states her position to be as follows:
“Thus it appears Leal Garbett, appellant herein, is in the anomalous position of seeking relief of this court from an order denying her motion to set aside and vacate her abandonment of appeal theretofore filed and to reinstate her appeal from a judgment rendered against her, while being, at the same time, disinclined to prosecute such appeal. The seeming anomaly of her position is more apparent than real, however, as a thoughtful weighing of the facts will disclose. Appellant is, to state it briefly, forced to this appeal in order to protect other litigation now being prosecuted by her, from the plea of res adjudicata by respondent herein. This the iower court did not fully comprehend when it denied the motion, the effect of which denial was not confined solely to this action, but very materially affected four others, involving large sums of money. Three of those actions are now before this court on appeal from the judgment. ... In this action the statute commenced to run from the date of the trust as to both appellant and her husband, and some seven years having elapsed, it is apparent, unless some reason appear to stay the
We believe that the foregoing argument should properly have been addressed to the federal court in opposition to the plea of res adjudicata. We do not deem it our duty to decide here whether or not the former judgment was a bar. Our only inquiry here is whether or not the trial court abused its discretion in denying the motion. It is true that appellant finds herself in a dilemma, and that it is one brought about by the mistake of her counsel in overlooking the strategic importance of keeping the judgment alive, and thus preventing opposing counsel from making use of it as res adjudicata. She admits that the appeal had no merit, but she has hopes of securing a modification which would show that the merits of the case were not adjudicated. All of such facts were presented to the trial court. We cannot say that it abused its discretion by failing to assist appellant in resisting the plea of her opponents in the other actions.
The order is affirmed.