William Wolff & Co. v. Canadian Pacific Railway

Appeal from an order setting aside default and judgment, with bill of exceptions. Judgment by default was entered on July 17, 1888. A motion was seasonably made to set aside default and judgment, and on January 25, 1889, an order was made that the “motion be and the same is hereby granted on condition that defendant pay to plaintiff the sum of sixteen dollars and fifty cents costs and seventy-five dollars counsel fees within ten days.” “And ordered that the proposed answer on file stand as the answer.” A tender of the whole amount, ninety-one dollars and fifty cents, was made within the ten days to plaintiff’s attorney, who refused to accept it on the ground that his right of appeal from the order might be prejudiced by the acceptance. Thereupon, on application of the defendant to the court below, the order was modified by vacating that portion of it which required the payment of the counsel fees. Plaintiff appealed from both of these orders; and the first was affirmed by this court and the second reversed. (Wolff v. Canadian Pac. Ry. Co., 89 Cal. 332 .) The remittitur was filed below on July 1, 1891. The order appealed from recites that the same amount was again tendered to one…