Booth v. Cottingham
| Decision Date | 07 January 1891 |
| Docket Number | 14,628 |
| Citation | 26 N.E. 84,126 Ind. 431 |
| Parties | Booth v. Cottingham, Guardian |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
Judgment reversed, with instructions to render the proper judgment in favor of the appellee, payable out of the trust funds of the lunatic's estate.
W Booth, for appellant.
W Garver, for appellee.
Both parties assert that this is an agreed case under the statute; upon that theory they submit the case to us, and it was submitted to the trial court upon the same theory. Accepting, without investigation or decision, the statement of both parties that this is an agreed case under the statute, and taking as our guide the rule that parties are bound by the theory which they assume to be the correct one, we shall treat this case as an agreed case. Carver v. Carver, 97 Ind. 497 (516); Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544, 14 N.E. 572 (564); Brink v. Reid, 122 Ind. 257, 23 N.E. 770. Where parties agree upon a theory we can not with propriety deny their agreement, except, perhaps, where it is plainly necessary to do so in order to prevent manifest injustice.
Acting upon the assumption that this is an agreed case, the appellee's counsel asserts that we can not examine it because the affidavit required by the statute is made by one, only, of the parties, but this contention can not prevail. The statute does not require more than one affidavit; it can not be construed as requiring two without doing violence to the language employed by its framers. Section 553, R. S. 1881.
The further point is made that the agreement is not signed by both parties. The agreement is signed by the appellant in person and by the appellee, acting through the attorney who represented him in the court below, and who represents him as counsel in this court. It appears, moreover, from the record that the agreement as to the facts was submitted to the trial court by the parties, that it was acted upon by the trial court, and that a finding and judgment were made upon it. But more than this, there is nothing in the record of the trial court, nor in the record in this court beyond the bare statement of counsel in argument, showing that the appellee repudiated the act of his attorney who represented him in the court below and represents him here. It is clear beyond controversy that the agreement binds the appellee. It is enough to suggest that he would have received the benefit of the judgment had it remained in force, and that the judgment in that event would have been sufficient to bar another action, and, holding this benefit, the appellee is in no situation to repudiate the act of his attorney, even if it had not been so fully ratified and confirmed as it was.
The case must be decided upon its merits, by applying the law...
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