Groves v. Burton

• Citation: 125 Ind.App. 302,123 N.E.2d 705
• Decision Date: 24 January 1955
• Docket Number: No. 18564,18564
• Parties: Edith GROVES, Leonard Niekamp, Ethel Mominee, Lester Wilder, William Niekamp, Appellants, v. Burtis M. BURTON and Ona E. Burton, Appellees.
• Court: Court of Appeals of Indiana

Page 705

123 N.E.2d 705

125 Ind.App. 302

Edith GROVES, Leonard Niekamp, Ethel Mominee, Lester Wilder William Niekamp, Appellants, v. Burtis M. BURTON and Ona E. Burton, Appellees.

No. 18564.

Appellate Court of Indiana, In Banc.

Jan. 24, 1955.

James D. Lopp, John D. Clouse, Evansville, for appellant.

Sanford Trippet, Princeton, for appellee.

KELLEY, Chief Judge.

Appellants seek a rehearing of this cause on the ground that we have erroneously decided a new question of law in this state as applied to the facts of this case.

They say that the stipulation of the parties to this action that appellant Leonard Niekamp, 'was not made a party to said quiet title suit either as an unborn heir, or by representation, or by any other means or procedure' is binding on this and the trial court and exempts him from the effect of the 1909 decree of the Gibson Circuit Court, he being then unborn. We considered this contention in our opinion. It is evident that said stipulation had reference to the fact that said appellant, not being then in esse, did not appear of record in said action as a party defendant and, of course, was not represented of record either by counsel or otherwise as were the other defendants, his brother and sisters.

However, the legal effect of the joinder and representation in said action of Leonard's brother and sisters, they then having the same and identical interests as did he and there being no fraud or impropriety involved, cannot be obviated by the stipulation referred to. A stipulation that a certain thing was done or that certain action was taken is not necessarily conclusive as to the legal effect thereof. 50 Am.Jur. 610, Stipulations, § 9, note 6. In seeking the intent of the parties to a stipulation the language used will not be so construed as to give it the effect of admitting a fact obviously intended to be controverted. 50 Am.Jur. 609, Stipulations, § 8, note 10. 83 C.J.S. Stipulations, § 25, note 91, p. 66; 83 C.J.S., Stipulations, § 11, notes 7 and 8, p. 27. To construe the stipulation as contended for by appellants would result in admission that Leonard is not bound by the rule of virtual representation and that the former judgment is not binding upon him. This is a fact obviously controverted by appellees.

Further, appellants undertake, in an indirect manner, to cast discredit upon the 1909 judgment of the Gibson Circuit Court by posing a question. They ask: 'Does this court, * * * believe that in such a suit the minors and their guardian ad litem were certain to bring forward the entire merits of the question, so as to give the contingent interest of Leonard Niekamp effective protection?' As pointed out in our main opinion, appellants neither alleged nor proved any fraud, collusion, or impropriety in connection with said judgment, nor did they in any way contest the legality of the proceedings leading to the same. We cannot presume that the Gibson Circuit Court and the guardian ad litem failed to perform and discharge their sworn duties. Nor can it be...