Baucus v. Riveroll

272 P. 760, 95 Cal. App. 224, 1928 Cal. App. LEXIS 469

• Court: California Court of Appeal
• Decided: December 1, 1928
• Docket: Docket No. 5338.
• Status: Published

Opinion

THE COURT.

On the conclusion of a trial before the court without a jury, the judge announced that judgment would be rendered in favor of defendant. Thereupon, on request of defendant, plaintiff waived findings of fact, and judgment was entered accordingly. Within a few days following the entry of said judgment, plaintiff gave defendant notice of a motion to vacate the judgment and to require the filing of findings of fact and conclusions of law in the action. The cor#rt granted the motion and the appeal herein is from such order.

Appellant contends, first, that the court was without authority to set aside the stipulation of the parties; and, secondly, “that such action on the part of the lower court amounted to an abuse of discretion.”

That an order of a court disregarding a stipulation entered into between the parties to an action is discretionary, and that such order may be disturbed only when it clearly appears that the order was the result of an abuse of discretion, see authorities under sections 63 to 76. inclusive, title “Stipulations,” volume 44, Century edition, American Digest; also, in succeeding volumes of the American Digest, under section 12 of the same title.

It appearing that the affidavit in support of the motion here under consideration set forth facts sufficient to show that the consent of plaintiff to waive findings of fact in the action was inadvertently given, this court is unable to agree with appellant in his contention that in granting the motion to which reference has been had the court abused its discretion.

The order is affirmed.