Schmidt v. Oregon Gold Mining Co.

Opinion by Mr. Justice Wodverton. 1. Section 536 of Hill’s Code provides that “any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom.” The decree appealed from, in a strict sense, is neither a decree given by confession nor for want of an answer; but it has been held by this court that by consenting to the rendition of a judgment against himself the defendant, in effect, waives his answer, and thereby leaves no issue in the case to be tried; and that from such a judgment no appeal lies: Rader v. Barr, 22 Or. 496 (29 Pac. 889). In the present case the decree shows upon its face that the “defendant, by his said attorneys, in open court, here now consents that a judgment and decree may be here now made and entered * * ® as prayed for in plaintiff’s complaint.” What more could plaintiff have obtained in the absence of an answer, or upon defendant’s entire default? The recitals in the decree also show that the defendant gave its consent to the fixing of plaintiff’s attorneys’ fees by the court at such sum as it should find reasonable, and, there being no evidence in the record to guide it in determining what would be reasonable, we conclude that the parties intended that the court should ascertain the amount in its own way, and that they should [24] be bound by the result. And, further, it is apparent that the amount of the attorneys’ fee which plaintiff should recover and have entered in the decree as the finding of the court was a matter not to be determined by the court in invitum. The simple fact that plaintiff did not complain of the court’s judgment in fixing this sum at five thousand five hundred dollars would indicate that he so understood it, and expected to be fully bound thereby. All other conditions of the decree appear to be either deducible directly from the allegations of the complaint, or were specially consented to by the defendant. As to the matter of the referee’s and stenographer’s fees, the record shows that they were fixed and entered by the express agreement of both parties. So we have here a decree which the plaintiff, through his attorney, specifically requested the court to make, and to every feature of it which the defendant has upon the record consented. True, the record does not show upon its face that the plaintiff consented to the decree in the form as entered, but it was entered nevertheless at his expressed request, so that this decree is essentially a consent decree. The conditions, simply stated, are, the court is requested by one party to make certain findings, and to enter a decree thereon with certain definite conditions. To all this the other party consents, and the decree is entered. Now the party making the request appeals to this court, and demands that the decree be reversed in part, without even so much as moving the lower court to modify its findings, or the decree entered thereon, or calling its attention to errors and irregularities, so that the court could, upon its own motion, purge the record of its infirmities. To say the least, this is not fair treatment of the eourt below, and in support of its decree this court [25] will presume the consent of plaintiff to the entry thereof in its present form: Hayne’s New Trial and Appeal, § 285, p. 846; Parker v. Altschul, 60 Cal. 380; Lesse v. Clark, 28 Cal. 36; Wilson v. Dougherty, 45 Cal. 35; Reynolds v. Hosmer, 45 Cal. 627. Consent excuses error, and ends all contention between the parties. It leaves nothing for the court to do but to enter what the parties have agreed upon, and when so entered the parties themselves are concluded. From such a decree there is no appeal: Beach on Modern Equity Practice, § 795; Armstrong v. Cooper, 11 Ill. 540. Under section 692 of the Revised Statutes of the United States the practice of the national courts is to entertain an appeal from a consent decree; but they will not decide any matters that appear to have been consented to by the parties, and if the errors complained of come within the waiver the decree of the court below -will be affirmed: Pacific Railroad v. Ketchum, 101 U. S. 295. This court, however, is committed to the doctrine that no appeal lies from such a decree: Rader v. Barr, 22 Or. 496 (29 Pac. 889). For these reasons the appeal must be dismissed. 2. It is further claimed that, notwithstanding the parties may have consented to all the terms and conditions of the decree, yet that those portions thereof wherein it is found and decreed that plaintiff have and recover off and from the defendant two thousand seven hundred and fifty dollars in trust for T. Galvin Hyde, two thousand seven hundred and fifty dollars in trust for T. H. Crawford, two hundred dollars in trust for Charles F. Hyde, and one hundred and fifty dollars in trust for John Wheeler, are entirely without the scope of the complaint, and for that reason void, and therefore reversible upon appeal. Undoubtedly, under [26] the allegations of the complaint, the plaintiff could recover the fees named. He sues in the capacity of trustee, and whatever he may recover by reason of the decree would be in trust for the bondholders. Now, if, at his own request, the court has decreed that he recover these certain fees in trust for the parties named, who, for all that appears of record, have earned them, when, at the same time, he, as trustee for the bondholders, is under personal obligations to these parties for services rendered in the suit instituted by him, we cannot say that these provisions are so entirely without the scope of the pleadings, and the authority of the parties to agree to under them, as that the court will declare them void at the instance of a party requesting the court to enter just such a decree. We therefore consider the point not well taken. As to the error assigned because the court did not ascertain and decree to plaintiff a reasonable sum as compensation for services rendered as trustee, if the question was properly here we could not consider it, as no testimony is found in the record upon which to base such a finding and decree. Dismissed.