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District Court of Appeal, Second District, Division 2, California.


Civ. 13742.

Decided: October 26, 1942

Herbert Gall and Edward Fitzpatrick, both of Los Angeles, for appellants. David I. Lippert, of Los Angeles, for respondent.

From a decree in favor of plaintiff after trial befort the court without a jury in an equitable action to vacate a default judgment entered against plaintiff in the Municipal Court of Los Angeles, defendants appeal.

The evidence being viewed in the light most favorable to plaintiff (respondent), the essential facts are:

April 17, 1940, defendants Slaughter and Trigg filed an action in the Municipal Court of the City of Los Angeles against plaintiff and her son, Eugene R. Hallett. May 21, 1940, Eugene R. Hallett filed an answer, on his own behalf solely, to the action. Thereafter on December 27, 1940, the action was dismissed as to him by plaintiffs therein. May 23, 1940, plaintiff in the present action was personally served with a copy of the summons and complaint filed in the municipal court action. These documents she took to her attorney, Paul W. Forker, who prepared an answer on her behalf, which plaintiff verified. The original answer, a copy thereof, and a one dollar filing fee were handed to the attorney's secretary with the request that she mail the original to the clerk of the municipal court and a copy to Mr. Gall, attorney for plaintiffs in that action. The original answer was never filed and Mr. Gall did not receive a copy thereof. Subsequently plaintiff asked her attorney what was happening in the case and if everything was all right, and she was assured by him that everything was all right.

December 27, 1940, plaintiffs in the municipal court action caused a default judgment to be entered against plaintiff herein in the sum of $1,157.25. Thereafter an abstract of the judgment was filed with the county auditor of Los Angeles County pursuant to the provisions of section 710 of the Code of Civil Procedure, thereby levying upon the earnings of plaintiff, who was a school teacher, and the county auditor returned to the municipal court $281.12 as due plaintiff herein. On or about January 10, 1941, plaintiff received from the county auditor a notice advising her of the levy on her salary. This was the first time she knew that a judgment had been entered against her. On the same day plaintiff signed and filed in the municipal court an affidavit claiming that the money held under levy was exempt.

January 17, 1941, plaintiff signed a stipulation on behalf of herself, with Attorney Gall representing defendants Slaughter and Trigg, whereby it was agreed that plaintiff should receive $140.56 of the $281.12, upon which the levy had been made, and that $140.55 should be paid to defendants Slaughter and Trigg in partial payment of their judgment. In February, 1941, pursuant to section 710 of the Code of Civil Procedure, another levy was made upon the salary due plaintiff, amounting to the sum of $281.11. On February 18, 1941, plaintiff signed another stipulation with Attorney Gall, whereby it was agreed that plaintiff receive $231.11 of the money under levy and that defendants Slaughter and Trigg receive $50 of said sum, to be applied on account of the judgment they held against plaintiff. Both of the foregoing stipulations were carried into effect without any objection being made by plaintiff to the judgment which had been entered against her.

Defendants rely for reversal of the judgment in the present case, among other propositions, upon the following one:

Plaintiff by her conduct has waived the right to have the judgment entered against her vacated.

This proposition is tenable. The law is established that where a party acquiesces in the rendition of a judgment and acknowledges its binding force, such party thereby waives the right to have the judgment set aside upon the ground that it was entered because of fraud or mistake (34 Cor.Jur.(1924) 362, § 576; Spaulding & Co. v. Chapin, 37 Cal.App. 573, 578, 174 P. 334; Williams v. State, 151 Okl. 223, 3 P.2d 443, 445; Rawleigh Med. Co. v. McKinney Mo.App., 180 S.W. 440, 442).

Applying the foregoing rule to the facts of the present case, it is evident that plaintiff, after learning of the judgment that had been entered against her, recognized the same as a valid and subsisting judgment, by stipulating that portions of her salary upon which levy had been made be paid in partial satisfaction of the judgment entered in the municipal court. She also, in recognizing the validity of the judgment, in one instance received a greater portion of her salary upon which levy had been made than under the law she would have been entitled to.

For the foregoing reasons the decree is reversed.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concurred.

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