Crescent Canal Co. v. Montgomery

Citations

• 124 Cal. 134
• 56 P. 797
• 1899 Cal. LEXIS 958

Syllabus

<p>Action Involving Realty—Transfer of Interest—Fraudulent Stipulation—Motion of Successor to Vacate Judgment.—In an action involving the title to real property, where the defendants had transferred all their interest in the property involved in the controversy, and subsequently entered into a, fraudulent stipulation with the plaintiff for the entry of a judgment in bis favor, the successor in interest of the defendants, as the real party in interest, may move the court, upon a proper showing, to set aside and vacate such judgment, and the court should promptly grant the motion to set aside the judgment entered upon the . stipulation of the nominal defendants.</p> <p>Id.—Basis of Motion.—Such motion is not based upon section 47.8 of the Code of Oivil Procedure, to set aside a default obtained “through his mistake, inadvertence, surprise or excusable neglect.”; but is to set aside a judgment entered upon a fraudulent stipulation, and is based upon the rights of a party succeeding to the interests of a litigant pending the litigation, under section 385 of the Code of Civil Procedure. '</p> <p>Id.—Showing of Merits.—Where the condition of the record is such that the court below must have considered that the moving party bad a meritorious defense to the action, the motion to vacate the judgment should not be denied for want of the filing of an affidavit of merits under section 473 of the Code of Civil Pro-, cedure, upon which section the motion was not based.</p> <p>Id.—Acquisition of Part Interest.—One who has only acquired a part of the former interest of the defendant in the premises has the same rights under section 385 of the Code of Civil Procedure as one who has acquired the entire interest, and is entitled to set aside a judgment entered by stipulation of the defendants in-fraud of his rights.</p> <p>Id.—Substitution of Attorneys—Unauthorized Stipulation.—Where the nominal defendants had consented to the substitution of the attorney for their transferee, in lieu