Sherwood v. Yeomans

Mr. Justice Trunkey delivered the opinion of the court, When this cause was reached for trial on March 4th 1879, the parties filed a paper showing the terms of its settlement, the court noted on the trial list, “ Settled as per writing filed,” and the settlement was properly entered in the record. That the ' suit was thereby ended is too plain for argument. In September following, at the instance of the plaintiff, the case as if still pending was called for trial, whereupon the defendant objected to the empannelling of a jury for the reason [456] tliat the suit had been determined he next objected to the introduction of testimony, for the same reason; he finally asked the court to charge that the record showed that the cause had been settled and that the proceeding subsequent to the settlement was without authority of law. These objections and request evidence the absence of consent to go to trial, or of acquiescence by the defendant. The plaintiff (defendant in error) cites no authority in support of the position that a discontinuance, or nonsuit, or settlement of a cause, allowed by the court, while the same remains of record, may be treated by one of the parties and the court as a nullity. If one party attempts to so treat it, the other, who all the time objected and protested against further proceeding, will not be estopped from claiming relief in this court, although he endeavored to prevent a verdict and judgment against himself where no suit was pending. There was no issue for trial. The issue which had been raised in the pleadings was settled. This the record verified. No' groundwork had been laid upon which there could have been a trial or inquiry of the question,- whether there was fraud or mistake in the settlement. Taking the record as it stands there was nothing between these parties to warrant a trial or investigation in any form. Judgment reversed.