Reese v. Mahoney

21 Cal. 305 | Cal. | 1863

Field, C. J. delivered the opinion of the Court Court

Cope, J. and Norton, J. concurring.

The motion to open the default entered against the defendants, David and Dennis Mahoney, and to allow them to answer to the complaint, was properly denied. Then* default was entered in November, 1854, and the motion was made in September, 1861— nearly seven years afterwards. The delay in the motion is attempted to be explained by the existence of an alleged verbal stipulation of the plaintiff, that the default should be set aside, and the pendency of negotiations for a settlement until within a few days previous. It is also alleged in support of the motion, on the part of defendant, Dennis Mahoney, that the process in the case was served upon him in 1854, on board of a steamer, as he was about leaving for the Eastern States, and that the plaintiff, who was present at the time, stated to him that he might answer upon his return, and that no default should be taken against him. He returned in about a year afterwards.

It appears, from the statement made on the part of the plaintiff, that the stipulation, so far as the default of David Mahoney is concerned, was made in 1855, upon the understanding that the suit was to be settled pursuant to a verbal agreement of compromise, which, for years afterwards, the defendant promised to carry out, but finally refused to perfect.

Verbal stipulations with reference to proceedings in pending actions cannot be regarded, except so far as they are admitted by the parties against whom they are sought to be enforced. This rule is necessary to avoid endless disputes. (Patterson v. Ely, 19 Cal. 35.) But if the rule were otherwise, the stipulations would not have aided the motion. The one given to Dennis Mahoney in November, 1854, if not adhered to, should have been made the ground of an application to the Court within a reasonable time after his return from the Eastern States in 1855. The Court very properly refused to listen to complaints that this stipulation had been violated nearly seven years before. And it was too late for David Mahoney, after neglecting to act upon the stipulation given to him until 1861, to ask that it then be enforced.

The motion was also properly denied on another ground. There was no allegation of merits on the part of either of the Mahoneys. It nowhere appears that they have any title to the property or defense to the action, or that the judgment entered against them is in any respect unjust.

Judgment affirmed.