Northern Pacific Railway Co. v. Barlow

Fisk, J. (After stating the facts as above). It is strenuously insisted by respondent’s counsel that the order complained of is not appeal-able. As to that portion of the order vacating the judgment, such contention is no doubt sound. The judgment was adverse to defendant,, hence she was not aggrieved by the order vacating the same, but the order goes much farther than a mere vacation of the judgment; it sets aside the findings of fact and, in fact, grants a new trial. Not only this, but it goes farther and nullifies and destroys a solemn stipulation entered into between the parties covering most of the facts relevant to-the issues involved and relegates the parties to the original positions in the action at the time the answer was served nearly six years prior thereto. If permitted to stand, such order necessitates, not only a retrial of the case from the beginning, but deprives defendant of the benefit of such stipulation, compelling her to entail expense and trouble' incident to procuring evidence covering the issue disposed of by the-stipulation. We deem it reasonably clear that such order “involves-the merits of the action or some part thereof” within the meaning of subd. 4, § 7225, Eev. Codes 1905, and is therefore appealable: It. would, indeed, be strange if the rule was otherwise, as it would result, in depriving defendant of the right to have such order reviewed. Important and substantial legal rights of defendant are destroyed by such order, and no redress is afforded her unless she may appeal therefrom. Manifestly no right of review is afforded her under the provisions of § 7226, Eev. Codes. That section reads: “Upon an appeal from a judgment the supreme court may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judgmentSuch order may or may not affect the ultimate judgment to be rendered, and under the plain wording of said section the order is not reviewable on an appeal from the final judgment, unless it necessarily affects such judgment. The case of' Bolton v. Donavan, 9 N. D. 575, 84 N. W. 357, is in point upon the last proposition and also sustains our views above expressed to the effect that the order complained of is appealable. Subdivision 4 ofi [208] ■% 7225, supra, is there constraed, and it is held that the phrase “involves the merits” must be interpreted so as to embrace orders which pass upon the substantial legal rights of the suitor, whether such rights do, or do not relate directly to the cause of action or subject-matter in controversy, and authorities are therein cited from the states of Wisconsin, South Dakota, and Minnesota in support, of the rule ’of construction thus announced. In addition to the authorities cited in Bolton v. Donavan, see the recent case of Plano Mfg. Co. v. Kaufert, 86 Minn. 13, 89 N. W. 1124, to the same effect and which cites with approval the two early Minnesota cases criticized by respondent’s •counsel in their' brief. The authorities relied upon by respondent’s counsel in support of their contention that the order, in so far as it vacates the stipulation ■of facts, is merely an interlocutory order, and not appealable, are not in point under a statute like ours, and it would serve no useful purpose to review them here. In support of our view that the order is appealable, see 20 Ene. PI. •& Pr. p. 669, and cases cited under notes 10 and 11. It will be noticed that the cases therein cited are all from the states of New York, Minnesota, and Wisconsin, each of which have a statute the same as ■subd. 4, § 7225, supra. Our conclusion upon this feature of the appeal is that the order, in so far as it vacates and sets aside the findings of fact and relieves the plaintiff of the force and effect of the stipulation, is appealable upon the ground that it involves the merits within the meaning of subd. 4, ’§ 7225, aforesaid. In view of this conclusion we need not determine whether it is also reviewable under the last clause of subdivision 3 of ■said section, upon the ground that it, in effect, grants a new trial.’ This brings us to the merits. That trial courts may, in the exercise ■of a sound judicial discretion for good cause shown and in furtherance of justice, relieve parties from stipulations which they have entered into in the course of judicial proceedings, is elementary. It is equally well settled that an appellate court, sitting as a court of review, will not interfere with nor control the exercise of such discretion thus vested in the trial court, except in cases of a clear abuse of such discretion. Authorities need not be cited upon propositions so well established. A number of authorities are cited and relied on by respond [209] eht’s counsel in support of their contention that the stipulation was properly vacated. We have examined such authorities, and find nothing therein contained which furnishes much light or assistance under the facts here presented. They merely announce in a general way the principle that trial courts possess the power'to relieve and will, in the exercise of a sound discretion, relieve a party from the effects of stipulations of facts, not true, if, as stated in Richardson v. Musser, 54 Cal. 196, “the application is made in proper time;” or, as stated in Keens v. Robertson, 46 Neb. 837, 65 N. W. 897, “when their enforcement would result in serious injury to one of the parties, and the other party would not be prejudiced by their being set aside.” We take it, however, to he reasonably well settled that the making of such stipulations should be encouraged by the courts, rather than discouraged, and enforced by them unless good cause is shown to the contrary. Lewis v. Summer, 13 Met. 269; Lincoln v. Lincoln Street R. Co. 67 Neb. 469, 93 N. W. 766. See also 20 Enc. Pl. & Pr. p. 668, and eases cited. The case of Lincoln v. Lincoln Street R. Co. supra, is particularly in point under a state of facts quite analogous to those in the case at bar. There, a stipulation had been entered into embracing thirty-eight paragraphs covering most of the issues. At the trial plaintiff asked to be relieved from a portion of such stipulation upon the ground that the facts stipulated were not true, and counsel claimed to have been misled in agreeing to and signing the same. In sustaining the ruling of the trial court in refusing to relieve plaintiff therefrom, the court, among other things, said: “It would also seem that the application came too late to be entertained by the court. The plaintiff had made its case and rested. It had put in evidence all of the stipulation, except that portion of it which defendants were then attempting to introduce, and it would have been unjust at that stage of the proceedings to deny the defendants the benefit of these paragraphs. Yet counsel insist that the court, in the exercise of its discretion, ought to have sustained the objection and granted their request. We cannot assent to this proposition. Paragraph 15 fixed the time when the bonds and mortgage in question were delivered to the New York Security & Trust Company, and stipulated that they were sold to bona fide purchasers for value, without knowledge or notice of any of the matters mentioned in the stipulation, except such [210] constructive notice, if any, as was imparted by the corporate records of the Street Railway Company, and of tbe city of Lincoln and the laws of this state. Paragraph 16 contains practically the same statements as to the bonds and mortgage executed and delivered to the New York Guaranty & Indemnity Company. ... If the court had sustained the objection and granted the request, the result would have been a mistrial. It would have rendered it necessary to retry the whole case, and to require this to be done would have been an abuse of discretion. Stipulations and agreements like the one in question should be encouraged and sustained by the court.” Citing numerous authorities, including Van Horn v. Burlington, C. R. & N. R. Co. 69 Iowa, 239, 28 N. W. 547, from which case they quote with approval the following language: Where a party to a suit has entered into a written stipulation admitting that a town ordinance was valid and in full effect at the time of an accident, he cannot be relieved from it simply on the ground that he was ignorant when he entered into it, and that the ordinance was invalid for want of publication. Ryan v. New York, 154 N. Y. 331, 48 N. E. 512, is also quoted from with approval. Parties should not be relieved from stipulations except for good cause shown, and the application should be seasonably made. Delay in asking for relief may defeat the application. 20 Enc. PL & Pr. pp. 662, 666, and cases cited. Applying these fundamental and well-established rules to the facts in the case at bar forces us to the conclusion that the making of the order was a gross abuse of discretion. The application to be relieved from the stipulation was made nearly five years after the stipulation was entered into. Such stipulation was entered into at the solicitation of respondent’s counsel, in the utmost good faith, without the least attempt to mislead, or taking undue advantage of respondent’s counsel by counsel for defendant, and after mature deliberation by both counsel. Eor nearly five years defendant’s counsel relied in good faith upon such stipulation as stating the true facts, and the cause was tried, submitted, and decided without any intimation whatsoever that such stipulation did not recite the true facts. Not only this, but the showing on which such order was granted nowhere makes it appear that the facts thus stipulated are untrue. On the contrary it is stated in the affidavit of plaintiff’s counsel that there is no evidence available to show what [211] tbe true facts are. Opposed to this is the affidavit of defendant’s counsel, positively stating, in effect, that the facts thus stipulated are true, and that it'was definitely understood and agreed that the sole question left open for determination in the trial was the date on which the Railway Company constructed its grade or roadbed over said land, and the only evidence offered in the trial, aside from the stipulation, related to such issue. Counsel for plaintiff do not contend that, if relieved from such stipulation, they will be able, upon another trial, to establish the fact to be other or different than as stipulated. They merely contend, in fact, that they are entitled to have such fact rest on a mere presumption or inference, but there is no reasonable probability that the fact thus stipulated can be shown to be untrue. In view of the showing made, we are entirely clear that the granting of the order complained of, in so far as it relieved plaintiff from the stipulation of facts, was an abuse of discretion. Eor these reasons the order is reversed. All concur. Ellsworth, J., being disqualified, did not participate; Honorable W. C. Crawford, of the tenth judicial district, sitting in his place by request. _