Cartmell's Estate, In re, 22
| Decision Date | 07 January 1958 |
| Docket Number | No. 22,22 |
| Citation | 120 Vt. 234,138 A.2d 592 |
| Parties | In re James R. CARTMELL'S ESTATE. Appeal of Dorothy MURRAY. |
| Court | Vermont Supreme Court |
Wayne C. Bosworth, Middlebury, for appellant.
Bloomer & Bloomer, Rutland, for appellee.
Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and KEYSER, Superior judge.
This controversy stems from two pretrial conferences in this case. It is here on exceptions of four claimants in the Cartmell estate, Gladys Brown, represented by Harry Brown, executor of her estate, Marjorie Holmes, Edith Benedict and Eleanor Cartmell, hereinafter referred to as the appellants, to a judgment of the Addison County Court. The case came before the county court by virtue of an appeal of Dorothy Murray, hereinafter referred to as the appellee, from an allowance of $12,000 by the commissioners in the James R. Cartmell estate to each of the appellants above named. The other party represented here is Jessie Cartmell. It appeared in oral argument that the appellants and the appellee are all and the only children of James R. Cartmell and that Jessie Cartmell is his widow.
The record discloses that the county court with the presiding judge and one assistant judge present held a pretrial conference on February 26, 1954 in connection with this case, No. 4915 on the county court docket, at which all of the attorneys representing the respective parties were present. Another attorney, who represented another and different party in case No. 4902 on the county court docket, was also present. No testimony was taken at that conference. There was a discussion between the attorneys and the court. No transcript was made of this discussion.
Later a letter was written to the presiding judge by the attorney who represented the appellants and on March 15, 1954 another pretrial conference was held before the full court, consisting of its three members, at which conference the same attorneys were present representing the same parties. A transcript was made of what was said at this conference. It has been furnished us as a part of the bill of exceptions. No sworn testimony was taken. The proceedings consisted of questions, answers and statements by and between the court and the attorneys present plus some exhibits.
Following this conference, the court made and filed a judgment order, signed by the full court. The judgment was against the Cartmell estate in favor of each of the appellants and the appellee for $12,000 each and it was ordered that it be certified to the probate court for the District of Addison. The appellants and the executor of the Cartmell estate were allowed exceptions but only the appellants filed and are here on a bill of exceptions.
The general exception to the judgment raises the question whether it is supported by the facts found. Andrews v. Newton, 118 Vt. 290, 291, 108 A.2d 517. No findings were requested or made so none are before us except such as are to be inferred in support of the judgment. We therefore look to the transcript. Sage v. Sage, 115 Vt. 364, 61 A.2d 557. All of the attorneys present, except the attorney representing the appellants concurred in their statements at the second conference that at the first conference an agreement was made in case No. 4915, the present case that provided for a settlement in accordance with which a judgment was to be entered for the appellants and the appellee for $12,000 each, thus disposing of the case without a trial and that the attorney for the widow would prepare a stipulation evidencing such agreement. He later prepared such a stipulation.
At the second conference, this attorney representing the widow signed the stipulation and it was also signed by the attorney representing the appellee. The attorney representing the appellants made a statement. This statement shows that he claimed that any agreement made at the first conference would have to be approved by the clients. He claimed that the first conference was merely a pretrial conference to get the views of the attorneys; that two cases were to be discussed and he stated that his clients desired nothing but an equitable distribution of the assets of the estate and that 'I should stand ready to approve a stipulation which provided for an allowance of the gifts to all five of them;' that After making this statement, he refused to sign the stipulation 'as a separate item.'
Following this statement and refusal, the other attorneys present, in reply to questions by the court, denied that there was any discussion by the attorney for the appellants that he would have to confer with his clients before approving any agreement and disposition of case No. 4915 and they also stated that an agreement was reached for a settlement of that case so that it would be disposed of without a hearing or trial and that this was not dependent upon case No. 4902.
After all of the foregoing had taken place, the court made the following statement;--
It is evident that the conclusion of the court was well within the facts and amply justified by them.
The attorney for the appellants in his brief seems to rely, not on the fact that he made no agreement consenting to a judgment, but on the fact that it was not in open court and could therefore be withdrawn at any time prior to the entry of judgment.
County Court rule 3-A provides for pretrial conferences in order to expedite the disposition of causes. Pretrial proceedings have been a juridical development of modern times. Provision is now frequently made by statute and rule of court for the court to hold a pretrial conference. The pretrial court is considered a part of the trial procedure in any cause. 88 C.J.S. Trial § 17(2), p. 44. We are satisfied and hold that agreements made at a pretrial conference held pursuant to County Court rule 3-A are in fact and in legal effect made in open court. The subsequent course of action is controlled by agreements or admissions made at the pretrial conference. 88 C.J.S. Trial § 17(2), p. 46; Johnson v. Glassley, 118 Ind.App. 704, 83 N.E.2d 488.
It is also claimed that, even though there was a consent to the entry of a judgment, such consent can be withdrawn at any time prior to the actual entry of the judgment. A general statement is cited that 'it has been so held.' The case cited as authority for the statement had jurisdictional matters involved. It has also been held that allowing the consent to be withdrawn is within the discretion of the court. Garretson v. Altomari, 190 Iowa 1194, 181 N.W. 400. We adopt that as...
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Knaresborough Enters., LTD v. Dizazzo
...say the least, as conclusive upon them as if judgment was rendered in the ordinary course of the proceeding." In re Estate of Cartmell, 120 Vt. 234, 240, 138 A.2d 592, 595 (1958) (citations omitted). "Once a party agrees to a stipulation, he is bound by it, and the course of the trial is de......
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...declined the trial court's express invitation to pursue the issue, parents cannot raise it now on appeal. See In re Estate of Cartmell, 120 Vt. 234, 240, 138 A.2d 592, 595 (1958) (“If a court has jurisdiction of the subject matter, the parties by their conduct may waive all other jurisdicti......
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