Keens v. Robertson

• Decision Date: 21 January 1896
• Parties: KEENS v. ROBERTSON.
• Court: Nebraska Supreme Court

46 Neb. 837

65 N.W. 897

KEENS

v.ROBERTSON.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. 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. McClure v. Sheek's Heirs (Tex. Sup.) 4 S. W. 552, followed.

2. The ruling of a district court on a motion for a continuance will not be disturbed, unless it is manifest the court abused its discretion, and the litigant, himself guiltless of negligence or laches, was thereby deprived of an opportunity to make his case or defense. Insurance Co. v. Johnson, 61 N. W. 84, 43 Neb. 71; Railroad Co. v. Conlee, 61 N. W. 111, 43 Neb. 121, reaffirmed.

3. A litigant cannot, for the first time, object, in this court, that the district court erred in giving or refusing to give a certain instruction. He must make his complaint of the action of the court in his motion for a new trial in order to have it reviewed here.

4. It is not error for a district court to refuse to permit a witness to answer a question, where no offer of proof is made, if the question is of such a nature as to require an offer of proof, in order to advise the court of the competency and relevancy of the question under the issues.

5. Evidence to prove a defense, in the nature of a confession and avoidance, is incompetent under a general denial.

6. Where a question is asked and excluded, and an offer of proof made thereunder, the offer, to be competent, must correspond with the question.

7. Depositions taken in a case pending before a justice, and by stipulation used in said case and another pending before said justice, may be used on the trial of both cases in the appellate court, the stipulation in the meantime not having been set aside.

8. Where depositions are erroneously read to the jury, but not preserved in the bill of exceptions, this court cannot say that such error was prejudicial.

Error to district court, Buffalo county; Holcomb, Judge.

Action by G. M. Johnston and others, for whom F. Y. Robertson was substituted as plaintiff, against F. G. Keens. There was a judgment for plaintiff, and defendant brings error. Affirmed.R. A. Moore, for plaintiff in error.

Dryden & Main, for defendant in error.

RAGAN, C.

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 day 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 v. 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 Bank case should be tried upon the same issues that it was tried on in the justice court; but that action, like the one here, was on a subscription to this Kearney paper mill. Like this one, it has 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. Sheek's Heirs (Tex. Sup.) 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, 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...