Full title: DALE ANDRE LEE EVERETT, a Minor, etc., Plaintiff and Appellant, v. CHAD
Court: Court of Appeal of California, Second District, Division Five
Date published: Apr 5, 1976
Facts
In September 1973, in an action brought by Sheila Scott, the minor plaintiff’s mother, against defendant, alleged to be plaintiff’s father, the following judgment was entered in the defendant’s favor:
“The above-entitled matter came on regularly for trial before a Jury. . . . [T]he matter was tried before the Jury on September 4, 5, 7, 13 and 14, 1973; evidence both oral and documentary was presented; on September 19, 1973 the parties and their attorneys executed and filed with the Court a written Stipulation which provided, . . . that the Court should (i) take the case from the Jury . . .; (ii) that Plaintiff’s deposition . . . should be filed, same to be read by the Court and considered as the direct testimony of Plaintiff; (iii) that the matter should be submitted without argument to the Court for its decision on the record including all evidence and the pleadings which should be deemed to be evidence; and (iv) that findings of Fact and Conclusions of Law, Motion under C.C.P. 473, Motion for New Trial and right of appeal are waived.
Issue
Court Judgment
Nothing in the record of the former action suggests compliance with either the letter or the spirit of Berry v. Chaplin, nor does it negate the allegation of the complaint that the judgment therein was the result of a compromise. It was, therefore, an error to sustain the demurrer on the basis that the minor plaintiff’s rights had been adjudicated in the prior proceedings.
The judgment is reversed.
Ashby, J., and Hastings, J., concurred.
A petition for a rehearing was denied on April 22, 1976, and the respondent’s petition for a hearing by the Supreme Court was denied on June 2, 1976. Mosk, J., did not participate therein.
Also, Read