Gregory v. Haynes

Citations

• 21 Cal. 443

Syllabus

<p>Where the plaintiff in an action died before trial, and a subsequent order for judgment contained a recital as follows, “ This action having been continued in consequence of the death of the plaintiff, by his executor, Samuel Webb, and the jury having found a verdict for plaintiff/’ and then awarded judgment in favor of the plaintiff: Held, that the recital sufficiently showed a suggestion of the death of the original plaintiff and a continuance or revival of the cause in the name of the executor.</p> <p>The continuance of the name of a deceased plaintiff instead of that of his executor, in a judgment rendered after the substitution, is an error of form only, and does not make the judgment void.</p> <p>Where a motion to set aside a judgment is granted “on payment of all costs,” the judgment remains in force until the costs are paid.</p> <p>A failure by the opposing party to file his cost bill, or to give notice under a rule of Court allowing five days after notice for payment of the costs, would not operate to make the vacation of the judgment absolute.</p> <p>After a conditional order to set aside a judgment, the Court in deciding a motion to place the cause on the calendar for trial, “ orders that said motion be and the same is hereby denied, and thejudgment will remainHeld, that this was a distinct adjudication, that the previous order had not taken effect; and held further, that this order directing that the judgment remain, being the last in the case and not having been appealed from, it deprived of all force any previous order in reference to vacating the judgment.</p>