Thomajanian v. Odabashian

RUGG, C. J. This is a petition to vacate a judgment. Hearing was had upon the petition and affidavits filed by the petitioner. The respondent filed no affidavits. No witnesses were heard. The petitioner presented requests for certain rulings of law, some of which were granted and others refused. The petition was denied. The petitioner excepted to the refusal to give his requests for rulings and to the denial of the petition. The petition, the affidavit of counsel for the petitioner but no other affidavits, and the requested rulings form a part of the bill of exceptions. The pertinent facts appear to be that the respondent brought against the petitioner an action at law, which in April, 1928, was referred to an auditor. His report was filed and in October, 1928, was confirmed and judgment entered for the plaintiff in that action, the present respondent, for a substantial sum. In November, 1928, the defendant in that action, the present petitioner, filed a motion to recommit the report to the auditor on the ground of newly discovered evidence. Questions of law arising on this motion were reported to the full court, were disposed of by rescript, and on April 26, 1929, judgment was entered for the plaintiff in that action. The petitioner alleges that the auditor had formerly been counsel for him and his partner, that in April, 1924, he brought an action at law against the petitioner and his partner in order to collect his bill for professional services, in which there was agreement for judgment for the plaintiff and satisfaction of execution, apparently in July, 1924, and that the petitioner first became aware in May, 1929, that the auditor was the person who had brought this action at law for professional services. The only affidavit made part of the record shows that before filing this petition the auditor stated to counsel for the petitioner that the attorneys for plaintiff and defendant in the action, judgment in which is here sought to be vacated, conferred with him touching his appointment as auditor, and that he stated that the present petitioner had formerly been a client of his but made no statement as to the refusal to pay his bill for professional services or the action at law to collect the same.