Arthur D. Jones & Co. v. Spokane Valley Land & Water Co.

Mount, C. J. The respondent moves to dismiss the appeal in this case upon the ground that the appellant has failed to perfect the appeal so that the same might be assigned for hearing upon the October, 1906, calendar of this court. It appears that, while the cause was pending in the lower court, the parties by their attorneys entered into a stipulation which was in writing and filed as a part of the [147] records in the cause, as follows, omitting the title of the cause and the signatures: “It is hereby stipulated by and between said plaintiff and said defendant the Spokane Valley Land and Water Company, that the above entitled cause shall be tried on July 2, 1906; and that if either party desires to have the testimony of B. C. Corbin, the trial shall be adjourned for .completion until a later day in July, 1906, at which time his testimony may be taken as a part of the trial. It is further stipulated that either party desiring to appeal from the final judgment in said cause must perfect any such appeal and serve their briefs and file their transcript in time so that said cause may be assigned and heard at the October, 1906, term of the supreme court of said state, and if the appellant fail so to do, the appeal shall be dismissed and no new appeal taken. This provision not to apply if appeal is dismissed for any other reason. Bated June 20th, 1906.” The record on appeal was not filed in this court in time to be assigned for hearing, and the case was not assigned upon the October calendar. Respondent thereupon moved to dismiss. “The parties may bind themselves by a stipulation waiving the right of appeal.” And “the attorney of record may bind his client without special authority by a stipulation waiving the right of appeal.” 20 Ency. Plead. & Prac., pp. 636-7. “An agreement of a party to waive the right of appeal will be recognized as a binding contract by the courts. It must be supported by a sufficient legal consideration, and the contract must be express, in writing, and made a part of the record in the cause.” 2 Ency. Plead. & Prac., p. 173. The foregoing rules seem to be supported by abundant authority cited in the foot notes in the volumes from which the rules are quoted. Counsel for appellant does not contend that the stipulation was invalid or without consideration or authority, but seeks to avoid a dismissal of the case upon the ground that he supposed the October term began upon the fourth Monday instead of the second Monday in [148] October, 1906. We think this is not a sufficient excuse. It was counsel’s duty to know exactly when the term began. The statute, Bal. Code, § 4652 (P. C. § 4328), and the rules clearly provide the dates for the beginning of each session. If counsel did not know the dates upon which the sessions began, when he entered into the stipulation, it was his duty to inform himself and to comply with his stipulation to have the appeal in this court in time. Counsel for respondent are in no wise to blame. They have placed nothing in the way, but the record shows they have expedited the appeal whenever possible to do so, and no blame for the delay can attach to the respondent. The appellant having wholly failed to comply with the stipulation, the respondent is clearly entitled to have the appeal dismissed, and it is so ordered. Dunbar, Crow, Root, and Hadley, JJ., concur.