State ex rel. Deignan v. Smith

Fullerton, J. — This is an application originally instituted in this court for a writ of mandamus. From the very meager record before us we gather the following facts: The relator Frank L. Deignan performed services as agent for one Olga W. Soelberg. Deignan, his wife joining in the complaint, instituted an action against Mrs. Soelberg and another to recover a balance claimed to be due for the services rendered. The defendants in that action counterclaimed for money received by Deignan which had not been accounted for, and for money loaned to him by one Peter Wickstrom, evidenced by notes secured by mortgages on the plaintiffs’ real property, which notes and mort [195] gages had been assigned to the defendants. A trial of the issues resulted in a money judgment in favor of the plaintiffs for the sum of $24.12, and a judgment annulling and cancelling the notes and mortgages mentioned. The judgment further directed the holder of the mortgages to cancel the same of record within ninety days from the date of the judgment, and provided that, in case of a failure or refusal so to do, the plaintiff could apply to the court for the appointment of a commissioner for that purpose. After the expiration of the ninety day period, the mortgages not having been canceled by their holder, the plaintiffs applied to the court for the appointment of a commissioner to cancel them. This application was resisted by the defendants, who also, at the same time, applied for stay of execution on the judgment until the further order of the court. The court, on the hearing, denied the application of the plaintiffs and granted that of the defendants. The relief sought in this court is a writ directed to the lower court demanding it to grant the motion of the plaintiffs for the appointment of the commissioner. The reason assigned for the issuance of the writ is that no sufficient cause, either of law or of fact, is shown justifying the stay granted by the court. In opposition to the plaintiffs’ motion, and in support of their own, the defendants filed the affidavit of their attorney. In substance, the affidavit recites that, at the time of the trial of the action in question, the defendants had another action pending against one Buckley for an injury committed by him to their lands; that counsel then representing them also represented them in the action against Buckley, and that the plaintiffs’ counsel in the action on trial represented Buckley in the other action; that it developed in the cross-examination of the plaintiff Frank L. Deignan that he, as [196] the agent of the defendants, had consented to the acts of Buckley which caused the injury for which they were suing Buckley; that, conceiving this act of Deignan rendered him liable along with Buckley for the injury committed to their real property, and conceiving further that a judgment in the case on trial, entered after they had acquired knowledge of plaintiffs’ liability, might be a bar to an independent action against him for the injury, they sought leave to amend their answer by setting up his liability, as an additional defense and counterclaim to the action then on trial; that, in order to avoid delay in the pending trial, it was stipulated and agreed between the parties that Deignan might be made a party defendant in the action against Buckley, and that that action should be tried without being subject to any prejudice that might otherwise arise by the judgment to be entered in the action then on trial, and that execution should be stayed on any judgment so entered until the trial and determination of the other action. An answering affidavit was filed in which the defendants ’ affidavit was denied in toto, save that it was admitted “that affiant agreed that the defendant herein would not be prejudiced in (the Buckley action) seeking to hold the plaintiff herein liable, in view of defendant’s attempt to try the issue in this cause, . . . and was willing to agree and did agree that the defendant would not be estopped from joining Frank L. Deignan with Cornelius C. Buckley in said cause.” The matter coming on to be heard on these affidavits, the court was not satisfied therewith and required the parties to furnish it with a transcript of so much of the testimony given in the trial as bore upon the question, and, upon this being furnished, entered the order as before stated. In this court the applicant for the writ has brought before us only the affidavits filed — the transcript fur [197] nished the trial court not being a part of the record. We must assume, therefore, that the transcript supported the defendants’ version of the transaction. Stated in its broadest aspect, the question then is, will an agreement, entered into on the trial of an action, not to issue an execution on the judgment that may be obtained therein until the trial and determination of another pending action, support an order staying an execution on the judgment thereafter entered, the conditions of the agreement not then having been complied with. It seems to us that it will. The agreement was one competent for the parties to make. It was founded on a substantial consideration, in that one of the parties, on the faith of the agreement, forebore what was to them a substantial right; a right which cannot now be denied them without the possibility of an irreparable injury. The agreement was not such an agreement as inhered in the action on trial, but was independent thereof and was not concluded by the final judgment entered therein. We can, therefore, see no legal reason why the agreement should not be enforced. The writ will be denied. Pabkeb, O. J., Mitchell, Tolman, and Beidges, JJ., concur. .