Re Faling Estate

McBRIDE, C. J. At the threshold of this case we are met by a motion to dismiss the appeal on the ground that both parties, after judgment, had stipulated not to appeal, and that in pursuance thereof the former executors, Strong and Mead, had turned over the property in their hands to the new administrator. We are cited to many cases in which it has been held that a stipulation of this character, duly entered into, cannot be disregarded, and that an appeal taken in disregard of such a stipulation will be dismissed. On the other hand, it is contended that, there being no consideration for the stipulation, it is a nudum pactum, and not binding upon the parties. Assuming for the purposes of this motion that there must be some consideration for such a mutual waiver of the right of appeal, we are of the opinion that, *340 where there is a valid right of appeal by either party, or both parties, the waiver of such right constitutes a sufficient consideration. In this case the executors introduced the evidence of attorneys who placed the amount of compensation which should be allowed as attorneys’ fees at from $75,000 to $Í00,000. This testimony was from men of high standing in their profession and was such as was entitled to some degree of credit from the court, although, on the other hand, other attorneys of high standing fixed the fees at from $20,000 to $25,000. Upon this testimony there was an issue of fact presented to the court as to what was a reasonable fee—whether the highest fee of $82,000, or the lowest,'$20,000, was a reasonable fee. The court said $50,000. The administrator had a right of appeal to have it determined in this court whether $50,000 was a reasonable fee, or whether $75,000 or $100,000 was reasonable under the circumstances.- It is not necessary for us to say what our judgment would have been here, but each party had a right to appeal and to have its contention on this subject heard in this court. We think this right, which is a substantial right, was a sufficient consideration for the stipulation, and it is not seriously contended that it was in any respect fraudulent or collusive. In considering this question we have practically conceded, for the purposes of discussion, the force of the contentions of the decisions cited by the appellants here, but none of them touches squarely the case at bar. In Southern Ry. Co. v. Glenn’s Admr., 98 Va. 309 (36 S. E. 395), the attorney for the defeated party stated in court, when the decree was rendered, that, while he differed with the court, he would not contest the matter. It was held that this *341 language did not amount to a waiver of the right of appeal. There was no stipulation. . Clark v. Strong, 14 Neb. 230 (15 N. W. 236), was a contested election case. Judgment was for the defendant. There was a stipulation in writing that if defendant would pay the costs plaintiff would not appeal. Defendant failed to pay the costs and plaintiff thereupon appealed. Held: That defendant having violated the stipulation, plaintiff still had the right of appeal. In Ah Tai v. United States, 135 Fed. 513 (68 C. C. A. 225), a Chinaman was adjudged to be deported, in a hearing before a United States commissioner, and had taken an appeal to the District Court. He agreed not to prosecute such appeal, but before the appeal was dismissed or th^ order of the commissioner deporting him affirmed he appealed to the District Court and claimed the right to be heard. Held: That, as the waiver was still executory and had not been acted upon, he had such right. This was a gwasi-criminal proceeding and the court laid some stress upon the sacredness of a man’s right to liberty under such circumstances. In Ward v. Hollins, 14 Md. 158, an appeal was prayed and allowed, hut it was stipulated that it should be withdrawn in consideration that a trustee should suspend a sale for ninety days, which the trustee had no power to do and did not do. It was held that there was no consideration for the withdrawal and that the defeated party could take a new appeal. There is another consideration in this case, and that is, that this was a matter in the lower court and the stipulation was on file there, and before the party could avoid its effect or bring the matter to this court *342 on appeal lie should have applied to the lower court to be relieved from the stipulation, showing such grounds as he had for such application. In Clarke v. Forshay, 3 Cal. 290, 291, the court said: “A written stipulation between parties litigant, filed in the lower court, to govern the proceedings there, will not be looked into by the appellate court, for the purpose of revising the judgment below, where such stipulation has not been brought to the notice of the court below for its adjudication. “If the appellant has been injured by a disregard of the stipulation, his remedy must first be sought in the court in which it was filed, or in some court of original jurisdiction.” We think it was the duty of the appellants, if the stipulation was improvidently entered into or procured by fraud, to have appealed to the lower court to set it aside before attempting to appeal, and, if the court refused to do this, then to bring that matter up, with the balance of the transcript, as part of its substance of appeal to this court. However, nothing here said is to be construed as precluding a remedy to the Home against trustees who may have fraudulently frittered away valuable rights. That question is not in this case, and, indeed, no fraudulent intent is charged, either on the record or in the briefs. The appeal will be dismissed. Appeal Dismissed.