McClellan v. Hurd

Helm, J. This appeal was perfected under the statute of 1885, and no objection is interposed on the ground [128] that the record entry of June 1st did not constitute an appealable order. Hurd and McClellan had the undoubted power tó make a valid stipulation, waiving the right to a new trial under the statute. This they attempted to do, and there is nothing in the record before us to show that any fraud was perpetrated by Hurd, or that McClellan was deceived or misled in the matter. The stipulation is mentioned, and sufficient of its substance given, in record entries. Whether actually made a matter of record in hcec verba, as stated by an affidavit included in appellants’ transcript, and uncontradicted in this regard, is of little consequence. It was afterwards acted upon by the parties. First a judgment was taken against Hurd thereunder, pro forma, and set aside; then, as agreed, the cause was tried on its merits, the second judgment, however, being against McClellan. The latter’s right to a review in this court upon appeal or error was not interfered with, and he attempted to perfect an appeal. The stipulation was binding upon the parties. Had it been possible to repudiate its terms at any stage of the proceedings, McClellan’s attempt so to do was made too late. The order of November Ith rightfully vacated the judgment as to De Lamar, and there is nothing unreasonable in Hurd’s position that until the term had lapsed he was not aware that it did more. This order should not have allowed McClellan a new trial. It appears clearly that the failure to distinguish between him and his co-defendant in this matter was inadvertent; that it was an oversight. In view of the court’s subsequent action we cannot presume that the stipulation, though previously frequently recognized, was remembered or called to its attention, or considered by it in announcing the order. Nor is Hurd chargeable with negligence in not referring to the recorded stipulation when the order was made. For the statutory right to a new trial in this class of cases, upon payment of costs before the first day of the succeeding term, in the absence of a contrary agreement, is [129] absolute, and the corresponding order a matter of course. If notice to Hurd of the application was required, it does not appear to have been given, and neither he nor his attorney was present. Hurd relied upon the stipulation, and had a right to expect good faith thereunder on the part of McClellan. The court, at the succeeding term, simply amended its order, making the order what it should have been in the first instance under' McClellan’s agreement. The stipulation was still in force, and had McClellan appeared on June 1st, and consented to the action taken, the situation would not have been materially different. We shall hold that he is estopped by the stipulation from questioning the validity of the order appealed from. We do not follow counsel into a discussion of the rule prohibiting a court from altering or amending its judgment at a term subsequent to the entry thereof; nor do we consider the exceptions to this rule created by the common law and by statute. The reason for the rule is not applicable, nor do the rule or the exceptions control in cases like this. The court having original jurisdiction of the subject-matter has plenary power to carry out the legal stipulations of parties with reference to its orders and judgments; and so long as the cause has not been transferred, by appeal or otherwise, to some other tribunal, and the interest of innocent third persons is in nowise influenced, its right to act, upon proper notice, in the premises, is not affected by the lapse of a particular term. The judgment is affirmed. Affirmed.