Bales v. Murray

• Decision Date: 14 April 1919
• Docket Number: No. 31182.,31182.
• Citation: 171 N.W. 747,186 Iowa 649
• Parties: BALES ET AL. v. MURRAY ET AL.
• Court: Iowa Supreme Court

186 Iowa 649

171 N.W. 747

BALES ET AL.

v.MURRAY ET AL.

No. 31182.

Supreme Court of Iowa.

April 14, 1919.

Appeal from District Court, Hardin County; 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, of Pocahontas, and Davis & Cameron, of Eldora, for appellants.

E. H. Lundy, Dean W. Peisen, and W. H. Soper, all of Eldora, for appellees.

SALINGER, J.

I. Many of the rulings now complained of 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 (stating 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 alleged concessions and agreement * * * are nowhere of record, were not reduced to writing, and were only in the minds of the attorneys, and each attorney having a different conception and understanding of what they were. This became apparent and was the reason for the withdrawal of any such concessions or agreements more than a week before the entering of the order.”

[1][2] 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 agreements 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, Estoppel (6th Ed.) p. 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. R. R., 64 Minn. 239, 66 N. W. 984. The syllabus in the last case, written by the court, is this:

“Defendant stipulated on the trial that, if plaintiff was entitled to recover, she was entitled to recover a certain amount. By a subsequent stipulation of the parties, also made on the trial, it appeared that her damages were a much less amount; but defendant never asked to be relieved from its first stipulation, or attempted to show that it was induced to enter into the same by fraud or mistake, or that it was in any manner misled when it entered into the same. Held, defendant is not in a position to assail its own stipulation in this court.”

The text in 36 Cyc. pp. 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, Estoppel (6th Ed.) p. 783. The same 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--

“The exercise of this judicial discretion cannot be invoked without cause shown; and, on the other hand, the circumstances may be such that it will be error to grant the relief asked; and an appellate court will not interfere with the decision of the lower court in regard to setting aside a stipulation unless there is an apparent abuse of discretion.”

Without relief obtained upon such application, a state of facts differing from what is stipulated may not be shown. Markley v. Telegraph Co., 159 Iowa, 557, 141 N. W. 443;Luther v. Clay, 100 Ga. 236, 28 S. E. 46, 39 L. R. A. 97; Encyclopedia of Evidence, vol. 1, p. 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 “Reaffirmance of Objections and Withdrawal of Agreements and Withdrawal of Understandings.” In this paper they assert that--

The parties moving “never intended to concede the correctness of all the receipts and expenditures of the said executor, and the said executrix, but were simply passive as to the same and believe the court should investigate these items and determine the correctness thereof for himself. * * * That in view of the foregoing, and of the further fact that there seems to be a misunderstanding and confusion in the matter and also as to other matters in which it is alleged there was an agreement between certain parties of the...