195 P. 475 | Cal. Ct. App. | 1920
On the ninth day of April, 1914, plaintiff commenced an action against Sarah A. Bryan to recover the sum of $2,500 on an account stated; on the fourteenth day of May, 1917, judgment was rendered in favor of plaintiff and against the said Sarah A. Bryan for the sum prayed for; on the eleventh day of July of the same year the defendant Sarah A. Bryan served and filed her notice of appeal from said judgment, and on the following day filed a cost and stay bond in form prescribed by section 942 of the Code of Civil Procedure, with William R. Sloan and George A. Scott as sureties thereon. While said appeal was pending, and on the second day of April, 1918, said Sarah A. Bryan died, *514
and after probate proceedings were regularly taken William R. Sloan, her brother, and John S. Bryan, her son, were appointed executors of the estate and duly qualified as such. On the nineteenth day of August, 1918, while said appeal was still pending, the said executors, upon their own request and motion, were duly substituted as defendants in said action. On the fifteenth day of April, 1919, said judgment was affirmed by this court (Duerr v. Sloan,
[1] (1) The appeal from the order denying the motion to stay proceedings must be affirmed. The motion was based upon the sole ground that the plaintiff had failed to present a claim to the executors of the estate of the deceased defendant. The motion did not present a legal ground for the stay of the entry of a judgment against the sureties. In the bond which they executed in accordance with section 942 of the Code of Civil Procedure, they stipulated "that if the said defendant and appellant does not make such payment within thirty days (30) after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may beentered in the said action on motion of the plaintiff and respondent, and without notice to the undersigned in her favor and against the undersigned and each of them." This stipulation is a consent on the part of the sureties that judgment may be entered against them if the conditions contained in the stipulation exist and without regard to any extraneous matters. Assuming, *516 therefore, that the superior court had jurisdiction to entertain a motion to stay the entry of judgment against the sureties, a stay could have been granted only upon a showing that these conditions did not exist. The failure to present a claim against the estate of the principal raised an entirely new issue, an issue which could not be determined upon a mere motion to stay the entry of the judgment, but, if at all, in a suit in equity where the sureties, having sought equity, would be required to do equity. In other words, when a party has consented to the entry of judgment against him upon certain specified conditions and within a certain fixed time, he cannot delay the entry of said judgment upon a mere motion based upon the ground that some unrelated facts have arisen which would make the entry of said judgment inequitable.
[2] (2) The appeal of the sureties from the judgment must be dismissed. By the stipulation which they made in the appeal bond they consented that judgment might be entered against them without notice if the defendant and appellant in the main suit failed to pay within thirty days after the filing of theremittitur in the superior court. Thus, at the expiration of thirty days from the date of the filing of the remittitur, the plaintiff in the main suit was entitled to the entry of judgment against the sureties, without notice to them, upon presentation of the record in the case showing that said judgment had not been paid within the time stipulated. Having consented to the entry of such judgment, the sureties cannot be heard in an appeal therefrom. (Erlanger v. Southern Pac. R. R.Co.,
[3] (3) The appeal from the order denying the motion to vacate and set aside the judgment against the sureties must be affirmed. The first ground assigned — that it was improperly and irregularly entered by the presiding judge — is without merit. The facts alleged in the affidavit *517
and upon which this ground was urged are that the cause was originally tried in department No. 13; that when theremittitur came down the judge of that department was absent on his vacation and the cause was by the presiding judge reassigned to department No. 3; that the motion to stay the entry of the judgment was heard by the judge regularly sitting in department No. 3 and denied by him; that thereafter the record in the case was presented to the presiding judge, who at that time was sitting in department No. 6. The presiding judge ordered that judgment be entered in favor of plaintiff and against the sureties, and an amended order to that effect was duly and regularly entered in the records of department No. 3, with a recital that the presiding judge was "sitting for dept. No. 3." It is argued that the judge regularly assigned to department No. 3 of the superior court was present throughout the whole of this particular day when this order was made and that it was unnecessary for counsel for plaintiff to appeal to the presiding judge for the order. The rules of the superior court are cited to the effect that motions connected with a case if made in open court shall be made in the department to which the case has been assigned, and that if the motion is made at the chambers it must be made to the judge of that department, except in case of his absence or inability to act. The clear purpose of this rule is to save the various judges from imposition; it does not limit their jurisdiction. In the present case, however, there is no discretion left to the judge, the duty of entry of judgment being mandatory. Appellants were not entitled to a hearing on the motion and it could have been made at any time after the expiration of the thirty-day period without notice. The court had to decide upon the record and files of the case the single question of law whether or not plaintiff was entitled to judgment. (Meredith v.Santa Clara Min. Assn.,
The precise question was determined by the supreme court of North Dakota in Yerxa v. Ruthruff,
In Bull v. Coe,
In Carver v. Steele, the court expressed the general rule as follows (
In the case at bar there was no agreement or special circumstance imposing upon the creditor the duty to present her claim against the estate. So far as appears from the record the estate may have been insolvent and the presentation of such a claim would have been an idle and useless formality. Again, if she had done so, it is not at all unlikely that she would have been met with the argument that she had waived the right of payment of the claim within thirty days from the filing of theremittitur and had consented to await payment of her claim in due course of administration. She was at all times entitled to rest upon the stipulations in the bond that the sureties would pay within thirty days from the filing of the remittitur if the judgment had not been paid by the principal debtor. It would not have been her duty to seek payment from the original debtor if she had been alive when the remittitur came down, and no process of reasoning can sustain the proposition that such a duty was imposed upon her by the death of the original debtor.
(4) The appeal from the order denying appellants' motion to recall the execution is based upon the same grounds urged on the motion to set aside the judgment, and for the reasons heretofore given said order must be affirmed.
[6] In affirming the orders involved in the three appeals heretofore discussed, it is proper to say that such action should not be taken as in any way indicating that any of said motions conform with our method of procedure. This statement seems necessary because counsel have cited opinions of the appellate courts affirming similar orders and have inferred therefrom that such opinions justify the *521
procedure taken. The rules of procedure are to be determined from the Code of Civil Procedure and not from inferences drawn from opinions of the appellate courts. When a party has recovered a judgment he should not be denied the fruits of that judgment by frivolous and vexatious motions not authorized by the prescribed forms of procedure. In Benning v. SuperiorCourt,
The appeal from the judgment is dismissed. The orders involved in the other appeals are affirmed.
Langdon, P. J., and Brittain, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 17, 1921.
All the Justices concurred. *522