Lawler v. Bannerman (1970)

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[Civ. No. 33571. Court of Appeals of California, Second Appellate District, Division Two. June 17, 1970.]

WYNEMA B. LAWLER, Plaintiff and Respondent, v. W. C. BANNERMAN, Defendant and Appellant

(Opinion by Fleming, J., with Roth, P. J., and Herndon, J., concurring.)

COUNSEL

Stapleton & Miller for Defendant and Appellant.

Robert H. Green and Leonard Goldstein for Plaintiff and Respondent.

OPINION

FLEMING, J.

The judgment appealed from was entered by the trial court on the stipulation of counsel for both parties, which stipulation had been made a matter of record in the trial court's minutes. Appellant did not seek relief from the stipulation or relief from the judgment in the trial court but filed an appeal. [1] Since a judgment entered pursuant to stipulation is not appealable (Reed v. Murphy, 196 Cal. 395 [238 P. 78]), and since we cannot set aside a stipulation on appeal when relief has not been sought from the trial court (Pawling v. Malley, 107 Cal. App. 2d 652 [237 P.2d 663]), the appealed must be dismissed. [2] Moreover, the appeal is frivolous, not only because it is one from a stipulated judgment, but because the issues raised by appellant are without merit. This appeal clearly appears to have been taken solely for purposes of delay. Code of Civil Procedure section 907 reads: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (See also Cal. Rules of Court, rule 26(a).)

The appeal is dismissed and added costs of $500 are hereby imposed on appellant.

Roth, P. J., and Herndon, J., concurred.