34 Cal. 235 | Cal. | 1867
If we assume, as claimed by counsel for appellants, that Lee attended the trial as attorney for the respondents and conducted the defense on their behalf, their remedy would undoubtedly have been by motion for a new trial under section one hundred and ninety-five, and not by motion for relief from the judgment under section sixty-eight; hut to so assume is to assume the principal point in controversy. The respondents claim that they were not at the trial in person nor by counsel through a mistake, which is shown and explained by the affidavits by which they supported their motion. If this be so, they have not mistaken their remedy.
The Judge who presided at the trial found, as his order
This prima facie case is, however, fully met and explained by the other side, who show, without contradiction, that
While it 'is not expressly so stated, yet it is at least assuméd on the part of the appellants, that Lee not having given them any notice of the limited character of his retainer they bad a right to consider him as having a full retainer, and that the respondents must be considered as conclusively bound by what appeared to appellants to be the case; or, in other words, that the respondents cannot be allowed to contradict the record. Such would doubtless be the result if the question had arisen collaterally, but not so in a direct proceeding in the same action to set aside the judgment under section sixty-eight. In such a case the parties are not concluded by the record in any respect; on the contrary they are allowed to show the true facts by any competent evidence.
The order of the Court does not set aside the judgment against all of the defendants, as claimed by counsel for appellants. The effect of the order, though general in its terms at the close, is to be ascertained by a reference to the motion upon which it was made and which is recited at the commencement. The motion was made on behalf of Guadalupe, Simeon and Joaquin Castro only, as is there recited, and the subsequent language must" be read as granting relief to them and them only.
On the question of mutual mistake between Castro and Barnes in relation to the retainer of the latter there is no conflict of evidence. The mistake fully explains the absence of Barnes or other counsel, and clearly entitles the Castros to relief under the sixty-eighth section. The affidavit of Guadalupe Castro shows that in retaining Barnes, as he supposed, he was acting also on behalf of Simeon and Joaquin,
Order affirmed.