Burley v. Millard
| Decision Date | 26 May 1881 |
| Citation | 9 N.W. 46,11 Neb. 286 |
| Parties | ALFRED BURLEY, PLAINTIFF IN ERROR, v. JOSEPH H. MILLARD, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Tried below before SAVAGE, J.
REVERSED AND REMANDED.
Redick and Connell, for plaintiff in error, cited Gillette v Morrison, 9 Neb. 395.
George E. Pritchett, for defendant in error, cited Helling v. N E. Mort. Co., 10 Neb. 611. High v. Bank, 6 Neb 155. Seymour v. Street, 5 Neb. 85.
It appears from the affidavits preserved by the bill of exceptions in this case, that upon the call of the trial docket in the district court, upon reaching this cause, Mr. Connell, one of the attorneys for the defendant, under a misapprehension of the true situation and merits of the case, as he afterwards and now conceives, proposed to Mr. Pritchett, attorney for the plaintiff, that plaintiff might dismiss the case at his own cost, and retain the replevined property. That proposition was declined by Mr. Pritchett. Whereupon Mr. Connell left the court room after, as he states in his affidavit, having withdrawn said offer and having some spirited words with the counsel on the other side and having declared his readiness to try the case when reached in its order. It further appears, that soon after Mr. Connell left the court room, Mr. Pritchett changed his mind in regard to the matter, and after obtaining the somewhat indefinite assent of Mr. Redick, partner of Mr. Connell and one of the attorneys for the defendant, announced in open court that it was mutually agreed between the parties that judgment might be rendered in said cause in favor of the plaintiff for the possession of the property, and in favor of the defendant for the costs, which was so entered upon the judge's minutes. That after these proceedings had taken place, and about half an hour after he had left the court room, as before stated, Mr. Connell returned thereto, and having learned what had taken place, and having informed Mr. Redick of the facts in the case, as he states, as having passed between him and Mr. Pritchett, both Connell and Redick sought to withdraw the consent of the defendant, so far as the same had been given by Mr. Redick, to the rendition of such judgment, and made known to the court what they claimed to be the true facts in the case, and notified Mr. Pritchett that application would at once be made to have said entry expunged; and the court, upon hearing the statements of the said Connell and Redick, notified the clerk not to make any record until the parties could be more fully heard.
It further appears that these facts were afterwards in due time brought to the attention of the court upon a motion to expunge the entry on the trial docket, entering judgment in said cause for plaintiff, the same as expressed in said motion not having yet been entered or carried on the journal of said court or signed by the judge, for the reason (as therein expressed) that the same was permitted to be entered under a misapprehension of the facts and the rights of said defendant, etc., which said motion was supported by the affidavits of Connell and Redick, stating the facts substantially as herein, with the addition on the part of Connell "that the original offer of affiant to consent to a dismissal of said case was made under a misapprehension of the facts and of the true rights of the defendant; that affiant then supposed that this action, which is one of two replevin suits relating to the property...
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