Hinkins v. United States Fuel Co.

199 P. 150 | Utah | 1921

WEBER, J.

In September, 1920, plaintiff filed in the distinct court of Salt Lake county a motion for an order vacating and setting aside a satisfaction of judgment in the above entitled cause.

On January 23, 1918, a judgment was rendered in favor of plaintiff and against defendant for $15,000. When a motion for a new trial was submitted by defendant, the court ordered that a new trial be granted unless plaintiff remitted $7,000 from the judgment. With plaintiff’s consent the judgment was reduced to $8,000 and a new trial denied. On June 5, 1918, a satisfaction of judgment was entered by King, Braffet & Schulder, attorneys for plaintiff. The motion to vacate the satisfaction of judgment was supported by the affidavits of plaintiff, of his mother, Hannah Hinkins, and bis sister, Mrs. Alice Beard. Upon consideration of the affidavits and of the oral testimony offered by defendant, the court denied the motion of plaintiff, who appeals from that order.

The affidavit of Joseph Hinkins, the plaintiff and appellant, is to the effect that on June 10, 1918, he received from his mother, Hannah Hinkins, at Standardville, Utah, a cashier’s check for $972.20, '‘which check was represented as being a payment on the judgment heretofore obtained by him in the above-entitled cause”; that he deposited the check to his wife’s credit; ‘‘that he has been informed that the records in the above-entitled case show that the judgment heretofore obtained by affiant in said cause w¡as satisfied in full and discharged on June 5, 1918, by Russel G. Schulder; that affiant never authorized or directed any one to settle or compromise the judgment so obtained by him as aforesaid, except upon the payment of the full amount of the said judgment, and affiant has always refused to accept, and has never accepted, the sum of $972.20, or any other sum, as full satisfaction of said judgment; that purported satisfaction of the said judgment by the said Schulder was made without authority from the affiant and against his will, wishes, and consent. ’ ’

Mrs. Alice Beard, a sister of plaintiff, says in her affidavit that on June 5, 1918, she went with her mother to the offices of plaintiff’s attorneys, and was informed by one of the members of the firm that they had compromised the judgment in favor of Joseph Hinkins, and another in favor of his brother Clifford, for $2,000 each, but that they would endeavor to obtain an additional $500. Thereafter affiant was informed that they could obtain no more than $4,000 for the two cases; that Mr. Schulder then exhibited to affiant a statement showing the cost incident to the trial, and handed her a check for $972.20 for delivery to Joseph Hinkins, the plaintiff; that both her mother and the affiant objected to the settlement; that Joseph Hinkins thereafter refused to accept the cheek for $972,2Q in full settlement for his judgment. Mrs. Hannab Hinkins, appellant’s mother, made a similar written statement under oath.

At the hearing of the motion, Russel G. Schulder, a member of the law firm of King, Braffet & Schulder, was a witness, and detailed the history of the transaction complained of by appellant. According to Mr. Schulder’s evidence, his firm first ti-ied the ease in favor of appellant’s brother Clifford, obtaining a verdict for $3,000. Thereafter the $8,000 verdict was obtained. Mr. Schulder considered both judgments in a precarious condition. He told plaintiff in each case of the reasons why the' judgments might be reversed, and why each plaintiff might suffer-ultimate defeat, whereupon plaintiffs told their attorneys:

“Go ahead and handle this yourselves, and get as much as you can, and whatever you do is satisfactory to us.”

On cross-examination, Mr. Schulder flatly denied that either Mrs. Hinkins or her daughter objected to the amount of the check, and testified that they expressed themselves as pleased with the settlements made.

Appellant urges that the court erred in permitting respondent to introduce oral testimony at the hearing. 1 This contention is clearly untenable, especially as appellant’s motion states that—

“This motion will be made upon the records and 'files herein and upon affidavits, copies of which are hereto attached, and upon oral testimony to be offered at the time of the hearing.”

Appellant argues that, according to the rules of the district court, orders, judgments, or decrees will not be entered on stipulation, unless the stipulation is in writing. No1 stipulation is involved in this controversy. The agreement 2 between the attorneys for plaintiff’and the defendant was to compromise a judgment. That agreement was executed

The other objection of appellant is that the court’s order is not sustained by the evidence. The motion to vacate the satisfaction of judgment charges that it “was fraudulently made, and made without full consideration and without warrant of law.” The record is wholly devoid of any evidence of fraud. At the time of the compromise the defendant was proceeding to perfect its appeal from the judgment. Negotiations for settlement were instituted by the attorneys for plaintiff, reputable members of the bar, 3, 4 who, as shown by the evidence, acted in good faith. The respondent was justified in presuming that they were authorized to make the settlement for appellant. 6 C. J. 655; Miller v. Preston, 154 Pa. 63, 24 Atl. 1041. Besides, the court found from the evidence that Mr. Sehulder had authority from the plaintiff to settle and compromise the judgment and to do what he did. That finding is supported by substantial evidence and is justified by the evidence.

The order appealed from is affirmed, with costs.

CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.