Bales v. Murray
Decision Date | 14 April 1919 |
Docket Number | 31182 |
Citation | 171 N.W. 747,186 Iowa 649 |
Parties | JOHN L. BALES et al., Appellants, v. W. J. Murray, Executor, et al., Appellees |
Court | Iowa Supreme Court |
REHEARING DENIED JULY 2, 1919.
Appeal from Hardin District Court.--R. M. WRIGHT, Judge.
APPELLANTS complain because the trial court overruled objections made by them to the report of the executor and the executrix.
Affirmed.
Hudson & Hudson and Davis & Cameron, for appellants.
E. H Lundy, Dean W. Peisen, and W. H. Soper, for appellees.
I.
Many of the rulings now complained cannot be reviewed until we settle just what was controverted in the trial below. The decree recites that:
"It was agreed between all parties by consent of the court that the objections filed and the application of the objectors should be construed to cover two grounds [." them]
The appellants contend that no evidence was offered, and that, therefore, the decision of the court is based entirely upon the reports made and objected to. The decree recites that it rests upon this agreement. If there was such agreement, this complaint is disposed of. Certainly, the agreement itself furnishes evidence whereon the court could act, so far as limiting review by it is concerned.
II. The appellants attempt to meet the situation by saying that
The thought seems to be that, because of the alleged reasons just quoted, the appellants were at liberty to withdraw whatever concession or agreement they had made, so long as they did so before the court consummated action upon the concession or agreement by entry of decree, and that they did withdraw whatever concession or agreement there was. There is nothing in the point that the alleged agreement may be found nowhere except in the minds of the parties to it, and that the agreement was not written out and formally made of record. A solemn recital in the decree of the court that certain facts were admitted in open court, and that an agreement there made limited the range of the trial, at the very least makes a prima-facie case, because of the presumption that the decree states the truth. "Recitals in judgment entries of material facts admitted or consented to" are conclusive until duly set aside. Bigelow on Estoppel (6th Ed.) 783. If an attorney stipulates a fact when it is not the fact, he may be relieved from such stipulation upon a proper application in the trial court, but cannot be relieved from it by the Supreme Court. Bonds v. Hickman, 29 Cal. 460; Warren v. Great Northern R. Co., 64 Minn. 239 (66 N.W. 984). The syllabus in this last case, written by the court, is this:
"
The text in 36 Cyc. 1294, 1295, declares that, to warrant the court in interfering to relieve a party from a stipulation, there must be a showing of fraud, collusion, mistake, accident, or surprise; that it should not be set aside on less grounds than would justify the setting aside of any other contract. To the same effect is Bigelow on Estoppel (6th Ed.) 783. The said text in Cyc. continues that, while the court has power to relieve from a stipulation, upon proper application and a showing of sufficient cause, so doing is within discretion, and that:
Without relief obtained upon such application, a state of facts differing from what is stipulated may not be shown. Markley v. Western Union Tel. Co., 159 Iowa 557, 141 N.W. 443; Luther v. Clay, 100 Ga. 236 (28 S.E. 46, 39 L. R. A. 95, 97); 1 Encyclopedia of Evidence 473.
The law is plain. The question is, What have appellants done to bring their appeal within it? What they did do was just this: They filed a "Re-affirmance of Objections and Withdrawal of Agreements and Withdrawal of Understandings." In this paper, they assert that the parties moving ...
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