McIntosh v. Comm'rs of Crawford County

The opinion of the court was delivered by Brewer, J.: [176] i. vacating juagcode, construed, „ „ , triotcourt. [175] Plaintiff in error, plaintiff below, presented an account to the board of county commissioners of Crawford county for rent of offices, etc. The board disallowed the account. He appealed. By change of venue the case was transferred to the Bourbon district court. On September 19th, 1871, both parties appeared in open court and by consent a journal entry was made postponing the case for two days and until September 21st. On September 21st the defendants failed to appear, and judgment was rendered in favor of the plaintiff. On January 22d, 1872, the judgment was assigned by assignment on the margin of record to E. Playter. On February 26th, 1872, defendants filed their motion supported by affidavit to vacate and set aside such judgment. Of this motion notice was served on E. M. Hulett, the attorney of record of said plaintiff, and service accepted by him as such attorney. When the motion came on to be heard neither the plaintiff nor his attorney appeared; the motion was sustained and the judgment vacated and set aside. At a subsequent term plaintiff made his motion to set aside said order vacating and setting aside the judgment. This motion was overruled. New pleadings were filed, the case tried, and judgment rendered for defendants. To reverse this judgment plaintiff now brings this proceeding in error, and the principal question for our consideration is, the action of the court in vacating and setting aside the judgment of Septem [176] ber, 1871. The application therefor was by motion. It was made under the third clause of §568 of the code, the section that authorizes district courts to vacate or modify their judgments at or after the terms at which they aré rendered. This third clause reads, “ For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.” A subsequent section provides that an application under this clause shall be by motion. The facts, as disclosed by the motion and accompanying affidavit, are, that at the September Term, and prior to the taking of the judgment, the plaintiff and defendants agreed upon a continuance of the case to the subsequent term, communicated this agreement to the clerk, and instructed him to make a journal entry thereof, and that relying upon such agreement the defendants’ attorney left the court and returned home. Judgment was, notwithstanding such agreement, and in the absence of the defendants, taken by the plaintiff. ' It will hardly be doubted that a court might properly set aside a judgment rendered under such circumstances. Counsel for in error insists that there is a rule of the district court which provides that “no verbal agreement of counsel or parties with each other, or an officer of the court, concerning 1¡he progress or management of a cause or proceeding will be enforced unless made in open court.” No such rule appears in the record, and we do not take judicial notice of the rules of the district courts. Even with such a rule it would not follow that a court was bound to tolerate so gross a breach of faith. The rules are designed to prevent injustice, not to further and accomplish it. The question is not, whether the court would have erred after notice of such a parol agreement in compelling the plaintiff to go to trial, but whether a party after making such an agreement can be allowed in a court of justice to profit by breaking it. [177] 3. Question of not preserves, [176] Counsel insists that no sufficient notice was given of this motion. The notice was served on E. M. Hulett, who was counsel of record for plaintiff, and service was accepted by [177] him in writing as such counsel. There was no appearance ot plaintift to the motion. Prior to the service of notice the judgment had been assigned of record to Frank Playter. Upon the motion to set aside this order vacating the judgment the affidavit of E. M. Hulett was filed, stating that when he accepted service of notice of the prior motion he told the defendants’ attorney that he was not attorney in the case, and that when the motion was called he stated to the court that he had no employment of record in the case, and would not appear to the motion. Mr. Hulett’s name appears signed to the petition as attorney for the plaintiff; nor do we understand the affidavit as asserting that it was wrongfully there, or that he did not appear at the trial as the plaintiff’s attorney. We understand rather that since the assignment he did not consider himself as attorney in the case, or as representing the assignee of the judgment, the real party in interest. This, it is true, is not stated in the affidavit, but seems to us the explanation most consistent with the good character of the parties concerned. It might be a question under the statute whether any further notice was requisite, notwithstanding Mr. Hulett’s disclaimer, and whether notice to the assignee was essential. But we do not care to investigate that question. The facts may not be all before us. The record fails to show that this affidavit of Mr. Hulett was the only evidence used on the motion. It may have been clearly shown that the assignee had actual notice of the motion, or indeed that he appeared to the motion, or that the assignment was not bona fide, or for value, or that Mr. Hulett was in fact fully authorized to appear for the assignee. It is useless however to speculate. It is enough that we can see that there might have been at least one .satisfactory answer to the facts stated in the affidavit. (Backus v. Ciarle, 1 Kas., 303; Altschiel v. Smith, 9 Kas., 90.) Subsequent to these proceedings amended pleadings were filed, both parties appeared by their counsel, a full and fair trial was had before a jury, and a verdict returned for the defendant. We are not willing to set aside a judgment rendered after such a trial in which both [178] parties participated, and affirm one based upon an ex parte hearing, unless upon a clear showing of error. 4. ., error-Complaint is also made of the proceedings upon the trial, of the admission of evidence, of the instructions, and that the verdict is against the evidence. None of these objections are well taken. There was no error in the admission of the testimony. The county commissioners were allowed to testify as to what oral propositions had been made to them by plaintiff. No action of the board was thus shown, but simply the statements of the plaintiff. And whenever any parol testimony was sought as to the action of the board upon such propositions it was promptly ruled out. We think this amounted to nothing more than showing the statements and admissions of plaintiff, and as such was competent. It is urged that the court misdirected the jury as to the amount that the plaintiff might recover under the pleadings and testimony. As the jury found for the defendants this error, if error it were, cannot have wrought any prejudice to the plaintiff. (Branner v. Stormont, 9 Kas., 51.) There was testimony sufficient to support the verdict. The judgment will be affirmed. All the Justices concurring.