Kirkpatrick v. McLaughlin Land and Livestock Co.

W. J. KIRKPATRICK, Respondent, v. McLAUGHLIN LAND AND LIVESTOCK CO. et al., Appellants.

[Civ. No. 11414. First Appellate District, Division Two. November 16, 1940.]

W. J. KIRKPATRICK, Respondent, v. McLAUGHLIN LAND AND LIVESTOCK CO. et al., Appellants.

COUNSEL

Garth V. Lacey, Wyckoff, Gardner & Parker and Harry L. Noland for Appellants.

C. H. White, D. Bianco, Keyes & Erskine and Geo. D. Schilling for Respondent.

OPINION OF THE COURT

Memorandum

The Court.

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 the 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.

[1] By stipulation of the parties in these appeals and in Bank of America, etc., v. McLaughlin Land and Livestock Co., number 11350, 40 Cal. App. 2d 620 [105 PaCal.2d 607], it has been agreed that upon the affirmance of the judgment [41 Cal. App. 2d 955] 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.