Keens v. Robertson
| Decision Date | 21 January 1896 |
| Docket Number | 5982 |
| Parties | F. G. KEENS v. F. Y. ROBERTSON |
| Court | Nebraska Supreme Court |
ERROR from the district court of Buffalo county. Tried below before HOLCOMB, J.
AFFIRMED.
R. A Moore, for plaintiff in error:
The agreement is binding. (State Bank of Nebraska v Green, 8 Neb. 307; McCann v. McLennan, 3 Neb 29; Palmer v. People, 4 Neb. 76; Rich v. State Nat. Bank of Lincoln, 7 Neb. 201.)
Dryden & Main, contra:
The court had power to set aside the stipulation, and that power was properly exercised. (Porter v. Holt, 11 S.W. [Tex.], 494; McClure v. Heirs of Sheek, 4 S.W. [Tex.], 552; Ward v. Clay, 23 P. [Cal.], 50; Richardson v. Musser, 54 Cal. 196.)
The facts are stated by the commissioner.
In the district court of Buffalo county, G. M. Johnston, F. M. Waterhouse, and J. A. Waterhouse sued F. G. Keens to recover $ 50 which they alleged in their petition that Keens had agreed to pay them when they should commence the erection of a paper-mill within three miles of the Midway Hotel in the city of Kearney and have on the ground, ready for placing in position, $ 20,000 worth of machinery for said paper-mill. F. Y. Robertson was substituted as plaintiff, had a verdict and judgment, and Keens prosecutes to this court a petition in error.
1. On the 23d day of January, 1892, a stipulation was entered into between the parties to the suit, or their counsel, and made a matter of record, that the decision in this case should be the same as that which might be rendered in the case of Johnson v. Buffalo County National Bank, then pending for trial in said court. On the 26th of January, 1892, counsel for Robertson made application to the court, supported by affidavit, to vacate the agreement just referred to. The grounds upon which he asked to have the agreement vacated were that at the time he became a party thereto he supposed that the case of Johnson against the Buffalo County National Bank would be tried upon the issues on which it was tried before the justice of the peace from whom it had been appealed, and that since making said stipulation counsel for the defendant in the case of Johnson v. Buffalo County National Bank had filed an answer in that case, setting up the defense of ultra vires. The court sustained the application to vacate the agreement, and this action of the court is the first error assigned here.
We do not think the court abused its discretion in setting aside this agreement. It is true the agreement was not procured by fraud or sharp practice, and counsel for the defendant in error here may have been somewhat negligent in not providing in the stipulation that the Buffalo County National Bank case should be tried upon the same issues that it was tried in the justice court, but that action, like the one here, was on a subscription to this Kearney paper-mill. Like this one, it had been tried in a justice court, where the answer was perhaps a general denial, if indeed there was any answer at all, and with these facts in his mind, counsel may have been very willing to save the labor, expense, and trouble of trying two cases, the facts and issues being the same. But of course the defense of ultra vires was not one which the defendant in this action could interpose, and if the plaintiff should be bound to submit in this case to the same judgment that might be rendered in the bank case, it might work an injustice to him, while the setting aside of the stipulation could not possibly prejudice the defendant in this action. In McClure v. Heirs of Sheek, 68 Tex. 426, 4 S.W. 552, before the term of court at which the case was tried, the respective counsel stipulated for the continuance of the case over the term of court about to be held. When the court convened one of the parties employed other counsel and notified opposite counsel that he would not be bound by the agreement and moved the court to vacate the stipulation for continuance on the ground that by a continuance of the case he would likely lose the subject-matter of the action--some cattle. The party making the application also showed the court that he had not consented to the condition since being advised that his counsel had made it, and that he had never authorized his counsel to consent to a continuance. The court set aside the continuance, holding that "Agreements of counsel in regard to the trial of a cause are not absolute, although in writing; and are not to be treated as contracts to be enforced under all circumstances. They may be set aside by the court in the exercise of a sound discretion when their enforcement would result in serious injury to one of the parties and the other [party] would not be prejudiced by its being set aside. To the same effect see Porter v. Holt, 73 Tex. 447, 11 S.W. 494. In this case the supreme court of Texas held not only that the setting aside of agreements of counsel was generally in the discretion of the district court, but went further, and held that where the agreement affected the substance of the cause of action or the character of the defense and appears to have been made by counsel without a knowledge of all the facts, and that its vacation would not prejudice either party, that the motion to set aside ceased to be a matter of mere discretion, and refusal to set it aside would be error. (See, also, Ward v. Clay, 82 Cal. 502, 23 P. 50, and cases there cited.)
2. As already stated, this action was originally brought before a justice of the peace. Robertson filed his petition in the district court on the 18th of December, 1889. On the 16th of April, 1892, the court ruled Keens to answer instanter. He did not answer, however until the 18th of April, and on that date his counsel filed an application for a continuance, which the court overruled. This action of the court is the second error assigned here. The grounds upon which counsel sought to have the court continue this action were that his client was absent in the city of New York; that he had gone to that place with his family on the 8th of April previous. We are of opinion that the district court did not abuse its discretion in refusing this application. The showing made for the continuance did not disclose that Keens ever intended returning to Nebraska. He knew the case was pending when he left, and yet he made no effort to have his deposition taken to be used on the...
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