KIRKPATRICK v. McLAUGHLIN LAND LIVESTOCK CO (1940)

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

KIRKPATRICK v. McLAUGHLIN LAND & LIVESTOCK CO. et al. (two cases).

Civ. 11413, 11414

Decided: November 16, 1940

Garth V. Lacey, of Salinas, and Wyckoff, Gardner & Parker, of Watsonville, for appellant McLaughlin Land & Livestock Co. Harry L. Noland, of Salinas, for appellant Maher. C.H. White, D. Bianco, and Keyes & Erskine, all of San Francisco, for respondent.

The plaintiff sued to enforce a judgment recovered by H.H. Bechtel against these defendants and assigned to this plaintiff for collection. In their answer and cross-complaint these defendants attacked the Bechtel judgment upon grounds of irregularities in proceedings under the original trust relation leading up to the foreclosure and sale, but not upon grounds of extrinsic fraud affecting the judgment.

For these reasons the trial court sustained plaintiff's demurrer to the answer and cross-complaint, and this order is the subject of the appeal in case number 11413. Pending this appeal the cause was tried on its merits, and plaintiff had judgment from which appeal number 11414 is taken.

By stipulation of the parties in these appeals and in Bank of America, etc., v. McLaughlin Land & Livestock Co., Cal.App., 105 P.2d 607, number 11350, it has been agreed that upon the affirmance of the judgment in case number 11350 these appeals numbered 11413 and 11414 shall be dismissed and that remittiturs shall issue as soon as the affirmance of that judgment shall become final.

It is therefore ordered that these appeals be dismissed in accord with said stipulation and that the remittiturs issue forthwith.

PER CURIAM.

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