29 Cal. 96 | Cal. | 1865
This is an action against the defendants as sureties to a bond given on behalf of W. W. Sheldon, executor of the last will and testament of John M. Fordyce. The appeal is from the judgment, and the only question is, whether the findings coupled with the admissions contained in the answer, support the judgment. .
The plaintiffs were residuary legatees in the will of Fordyee. The will was duly probated, and afterwards, on the 29th of December, 1860, there was found, in due course of proceedings, to be in the hands of Sheldon and his co-executor, Ellis, the sum of five thousand eight hundred and forty-six dollars and seven cents, which amount, by the decree of the Probate Court, then made, the executors were directed to pay to the plaintiffs, according to the terms and requirements of the will.
“ Catharine Fordyce et al. v. Francis Clark and W. W. Sheldon.—Whereas, the said defendants have this day consented to the entry and rendition of judgment against them for the sum of five thousand five hundred and forty-six dollars and seven cents damages, and one hundred dollars and fifty-five cents costs of suit; now, therefore, plaintiffs promise and agree that if defendants pay to plaintiffs at this date the sum of five hundred dollars, and the sum of five hundred dollars per month on the sixth day of each month thereafter, until the whole of said judgment be paid and satisfied, that they will not issue execution to enforce said judgment or any part thereof; and that plaintiffs will at no time issue execution for a greater sum than for such monthly instalments as shall become due and be unpaid at the time of issuing execution, and this stipulation may be entered as an order of Court.”
It further appears that Clark and Sheldon paid to the plaintiffs the first five hundred dollars on the day the judgment was entered, as provided in the stipulation and the order made thereon.
There is no error in the judgment. It may be conceded that the stipulation for an extension of time for the payment of the sum sued for, does not disclose a contract binding upon the plaintiffs, for the reason that the contract was without consideration. But the stipulation was made an order of Court; and, furthermore, the judgment appears to have been entered in pursuance of the terms of the stipulation. If the stipulation did not impede the sureties in their remedies, both
Such would have been the position, presumptively, of the sureties, had the action against the executors been left to the settled rules of procedure. But by the conventional judgment and order entered in the action, the remedies of the sureties were delayed and made to wait upon contingencies to which they had never assented and about which they had never been consulted.
Judgment affirmed.
Mr. Justice Currey having been counsel in the Court below, did not participate in the decision.