151 Cal. App. 2d at 352 Consent to judgment precludes appellate review7 citing cases“it is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it. ' a stipulation is a consent within the meaning of this rule.”
- Kenworthy v. Hadden, 87 Cal. App. 3d 696 (Cal. Ct. App. 1978).published Co. v. Hildebrand (1965) 238 Cal.App.2d 859, 861 [ 48 Cal.Rptr. 339 ]; Brooms v. Brooms (1957) 151 Cal.App.2d 351, 352 [ 311 P.2d 567 ].) The consent to the entry of judgment as a formal matter of procedure after an issue has been regularl…
- In Re Marriage of Carter, 19 Cal. App. 3d 479 (Cal. Ct. App. 1971).publishedCo. v. Hildebrand (1965) 238 Cal.App.2d 859, 861 [ 48 Cal.Rptr. 339 ]; Brooms v. Brooms (1957) 151 Cal.App.2d 351, 352 [ 311 P.2d 567 ].) There is ample authority to uphold the court’s approval and acceptance of the stipulation in question.
- Atchison, Topeka & Santa Fe Ry. Co. v. Hildebrand, 238 Cal. App. 2d 859 (Cal. Ct. App. 1965).published(Adams v. Southern Pacific Co., 109 Cal.App. 728, 731 [ 293 P. 681 ]; Reed v. Murphy, 196 Cal. 395, 399 [ 238 P. 78 ]; Hibernia Sav. & Loan Society v. Waymire, 152 Cal. 286, 287 [ 92 P. 645 ]; Sorensen v. Lascy, 42 Cal.App.2d 606, 608 [109…
- Tracy v. Tracy, 213 Cal. App. 2d 359 (Cal. Ct. App. 1963).publishedThe *363 recent case, Zinke v. Zinke Rebottoming Shoe Co., Inc., 208 Cal.App.2d 690, 694-695 [ 25 Cal.Rptr. 360 ], citing Brooms v. Brooms, 151 Cal.App.2d 351, 352 [ 311 P.2d 567 ], states: “ ‘ “It is an elementary and fundamental rule of…
- Zinke v. Zinke Rebottoming Shoe Co., Inc., 208 Cal. App. 2d 690 (Cal. Ct. App. 1962).publishedIn Brooms v. Brooms, 151 Cal.App.2d 351, 352 [ 311 P.2d 567 ], it was said: “ ‘It is an elementary and fundamental rule of appellate procedure that a judgment or order *695 will not be disturbed on an appeal prosecuted by a party who conse…
- LouBar, LLC v. U.S. Bank, No. H040422 (Cal. Ct. App. Sept. 16, 2016).unpublished
- Williams v. Sacramento River Cats Baseball Club, LLC, 40 Cal. App. 5th 280 (Cal. Ct. App. 2019).published
v.
KERMIT BROOMS, Appellant
This partition action is a com
panion case to a divorce action between the same parties. The plaintiff wife filed an action for divorce to which the defendant answered and filed a cross-complaint for annulment, alleging that plaintiff had a husband living at the time she married defendant. The trial court found against the defendant on his cross-complaint and granted plaintiff an interlocutory decree of divorce awarding each party a one-half interest in the parcel of real property which is the subject of this partition action. The defendant answered the plaintiff’s complaint for partition and thereafter stipulated with the plaintiff for the entry of a judgment of partition. Pursuant to said stipulation, an interlocutory judgment and decree of partition was entered. The usual partition proceedings followed, and eventually an order and decree confirming referee’s sale at private sale in partition was filed. The defendant moved to have each order set aside as void, which motions the trial court denied. Defendant has appealed[*352] from those orders and from the interlocutory and final judgments in partition.
The defendant stipulated to the entry of the “Judgment of Partition” from which he appeals, and his consent precludes a review on appeal. In the ease of Sorensen v. Lascy, 42 Cal.App.2d 606, the court said at page 608 [109 P.2d 713], “It is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it. [Citations.]” (See also 3 Cal.Jur.2d 590, paragraph 132.) A stipulation is a consent within the meaning of this rule. (Hibernia Sav. & Loan Soc. v. Waymire, 152 Cal. 286 [92 P. 645]; Pacific Paving Co. v. Vizelich, 1 Cal. App. 281 [82 P. 82].)
Defendant argues that the stipulation and consent to judgment are void and not binding upon him as he entered into the stipulation because of a mistake of fact. Defendant contends he mistakenly assumed his marriage to plaintiff was valid while in truth and in fact it was void because she had a husband living at the time she married defendant. This contention was decided adversely to appellant in the divorce action, and this court affirmed said judgment in Brooms v. Brooms, reported ante, p. 343 [311 P.2d 562],
The judgment appealed from is affirmed. The order denying motion to vacate and set aside interlocutory and final judgment of partition is affirmed.
Kaufman, P. J., and Dooling, J., concurred.
A petition for a rehearing was denied June 27, 1957, and appellant’s petition for a hearing by the Supreme Court was denied July 24, 1957.
Assigned by Chairman of Judicial Council.