Ex parte Hayes

• Decision Date: 09 April 1891
• Citation: 9 So. 156,92 Ala. 120
• Parties: EX PARTE HAYES.
• Court: Alabama Supreme Court

9 So. 156

92 Ala. 120

EX PARTE HAYES.

Supreme Court of Alabama

April 9, 1891

Application for mandamus.

Watts & Son, for petitioner.

David T. Blakey, for respondent.

WALKER J.

At the June term, 1890, of the Montgomery circuit court, before the trial of the pending case of E. C. Hayes v. W. D. Wescott, an agreed statement of facts in that case was made, reduced to writing, and signed by the attorneys for the respective parties. This statement was used in the trial of the case at that term of the court. The result of that trial was a judgment for the defendant. The plaintiff thereupon sued out an appeal to this court, and a judgment has been here rendered reversing the judgment of the circuit court, and remanding the case. 8 South. Rep. 337. Said agreement states among other things, the execution of a mortgage by one Williams to the plaintiff, and that at the date of the mortgage said Williams was insolvent, but that plaintiff did not know of such insolvency. After the remandment of the case, the defendant moved the circuit court to relieve him as to so much of said agreement as stated that plaintiff did not know of Williams' insolvency, and to permit him to introduce evidence on that point. On this application, the court, after hearing evidence, made an order setting aside the entire agreement. The plaintiff excepted to this action of the court, and preserved the evidence by bill of exceptions. The case was then continued to the next term of said court. The plaintiff in that case now applies to this court to issue a writ of mandamus to the judge of said circuit court commanding him to vacate and set aside said order in reference to said agreement. When there is no dispute between the parties as to facts desired to be presented on the trial, common sense suggests that the time and expense necessarily involved in making the proof in formal manner be saved by the execution of an agreement as to such facts. Such agreements are constantly made, often with an express reservation of the right to interpose objections to the competency, sufficiency, or legal effect of the facts stated. Courts generally encourage this method of dispending with unnecessary labor and outlay by enforcing as binding on the parties the formal written agreements of attorneys touching matters arising in the conduct of litigation. Starke v. Kenan, 11 Ala. 818; Saltmarsh v Bower, 34 Ala. 613; 3 Brick Dig. p. 193; 1 Thomp. Trials, §§ 193-361. Rules of practice regulating this matter have been in force in the courts of this state from an early day. But the legislature, evidently recognizing the practical wisdom of giving effect to such agreements, was unwilling to leave them to be governed by rules of practice subject to change, or to be dependent for their enforcement on the uncontrolled discretion of the courts, and has, by a statute mandatory in its terms, provided that "an attorney has authority to bind his client in any action or proceeding by an agreement in relation to such cause, made in writing, or by an entry to be made on the minutes of the court." Code 1886, § 866. It seems that the agreement of the attorneys in a cause, made in pursuance of the terms of this statute, is as binding upon the parties as would be a contract entered into by themselves. Norman v. Burns, 67 Ala. 248; Charles v. Miller, 36 Ala. 141. If agreements so made have such effect, then they may not be set aside upon any lower grounds than would warrant a rescission of a contract,-namely, fraud, collusion, accident, surprise, or some ground of the same nature. Bingham v. Supervisors, 6 Minn. 136, (Gil. 82;) Keogh v. Main, 52 N.Y. Super. Ct. 160; Wilson v. Spring, 64 Ill. 14-18; Harvey v. Thorpe, 28 Ala. 250; Saltmarsh v. Bower, 34 Ala. 613; 1 Thomp. Trials, § 194.

In this case the defendant rested his application for relief from part of the agreement on two grounds. In the first place, it was urged that defendant's counsel understood that the agreement was for the trial at the June term, 1890, only. It would seem that a sufficient answer to this suggestion is that the extent of the operation of the agreement is to be determined by the terms thereof, and not by the unexpressed understanding of the parties, and that nothing is expressed in the agreement limiting its operation to the term of the court at which it was made. On the contrary, the agreement expresses "that the case shall be tried on this statement of the facts," each party reserving the right to make proof of facts in addition to those agreed on. True, the agreement does not specifically refer to more than one trial, but the language just quoted as aptly applies to a trial at any subsequent term as to the trial expected to be entered upon at the term the agreement was made. Furthermore, it appears that the agreement was not occasioned by any temporary inability of either party to secure witnesses, documents, or records, but was entered into to dispense with the necessity of formal proof that might then have been made. Entered into in such circumstances, it would seem that the agreement was intended to apply to any trial of the case, and was not limited to the first attempt to try, which might, and, as a matter of fact, did, result in a mistrial, as shown by the reversal and remandment of the cause. Bridge Corp. v. Lowell, 15 Gray, 106-128; Bank v. Sprigg, 11 Md. 389; Carroll v. Paul, 19 Mo. 103; 1 Thomp. Trials, § 361.

The other ground to support the application-that counsel for the defendant allowed the particular statement from the admission of which he sought to be relieved to go into the agreement because he then regarded it as immaterial...