112 Cal. App. 2d 516 | Cal. Ct. App. | 1952
This is an appeal by plaintiffs from a judgment in favor of defendants and from an order denying plaintiffs’ motion to vacate and set aside the same.
By their action plaintiffs sought to recover damages alleged to have resulted from acts of the defendant district in cleaning and rebuilding a reservoir located on plaintiffs’ land. Defendants’ answer admits the cleaning of the reservoir and the placing of materials therefrom on appellants’ land, but alleges that such work was done with the consent of plaintiffs and in accordance with their agreement as to the manner in which it should be done.
The judgment in question was entered following an oral stipulation therefor which was placed in the record by the
From the affidavit of defendants’ counsel it appears that plaintiffs have been represented by various attorneys and that at the request of plaintiffs the cause had been postponed on numerous occasions during the period from November, 1946, when the action was originally filed, and April, 1951, when the parties actually appeared in court. On the last-mentioned date, and after the jury had been sworn in, Mr. E. T. Manwell, the then counsel for plaintiffs, asked for a continuance. In accordance therewith, the cause was continued until May 2, 1951, at which time Manwell stated that the parties had arrived at a compromise and that the jury could be dismissed. Thereupon Manwell dictated, for the record, the stipulated agreement of the parties. Findings were waived and it was agreed that P. J. Minasian, counsel for defendants, should prepare the judgment. Concerning the question of consent it further appears from Minasian’s affidavit that when the case was called on April 30th both plaintiffs were sitting next to their attorney at the counsel table, heard the discussion between court and counsel relative to a continuance for the purpose of reaching a compromise ; that thereafter counsel for both parties adjourned to Minasian’s office and there worked out the stipulation which was later put in the record; that upon completion of the stipulation plaintiffs’ counsel took a copy thereof for presentation to plaintiffs and on the following day Manwell informed Minasian that he would call at the latter’s office early the next morning in order to work out certain minor changes in the stipulation; that the following morning both counsel met at Minasian’s office; that the directors■ of the defendant district were also in attendance, as was plaintiffs’ engineer;
It is appellants ’ contention that nowhere in the record does it affirmatively appear that they consented to the oral stipulation which was placed in the record and since substantial rights of theirs were involved such consent was necessary and hence the stipulation is not binding on them.
We cannot agree with such interpretation of the evidence.
Thus the question for determination is not the extent of the authority of Mr. Manwell to bind his clients, but solely whether or not plaintiffs consented to the stipulation. And as to this question the record before us is wholly barren of any showing by plaintiffs of any dissent.on their part. To the contrary, the record clearly shows full knowledge of the discussions looking towards a compromise which began with their court appearance on April 30th and ended with their complete acquiescence and consent to the stipulation placed in the record on May 2d.
Under such facts and circumstances it can not be said that the trial court abused its discretion in denying the motion to vacate the judgment.
The judgment and order are affirmed.
Van Dyke, J., and Schottky, J. pro tern., concurred.