Rogers. v. Greenwood

By the Court MoMilláN, J. The order from which the appeal in this case is taken, is one within the exclusive jurisdiction of the court; a “judge at chambers ” has no authority to make it. An order of this nature, signed by the judge of the proper court, although the rule or application upon which it was made was heard at the judge’s chambers, will, under our statute, in the absence of special circumstances creating an exception, (which do not exist in this instance,) be considered an order of the court. Tale vs. Edgerton, 11 Minn., 271. The statute expressly provides that either party may dismiss an action with the written consent of the other, and provides for a judgment accordingly. Gem. Stat., sec. 242, sul-divs, 2, 5, p. 484. The plaintiff having obtained the written consent of the defendant’s attorney to dismiss the action, had a legal right to have it enforced by the judgment of the court, and the order setting aside the stipulation against his objection, deprived him of a positive legal right, and is embraced within [338] that provision of the statute which allows an appeal from an order “ involving the merits of the action, or some part thereof.” Gen. Stat., ch. 86, sec. 8, sub-div. 3, pp. 576-7; Piper vs. Johnson, 12 Minn., 60; Chotean vs. Parker, 2 Minn., 120, and authorities cited. The motion to dismiss the appeal must be denied. This brings us to the merits of the appeal. It appears from the return that the stipulation was entered into and filed on the 25th of January, 1869, and the clerk’s costs paid by the plaintiff in accordance with the terms of the stipulation. On the 17th of March, 1869, the plaintiff commenced another suit against the defendant in the District Court of Ramsey County, for the same cause of action, which is now pending, and on the 20th of March, 1869, the order to show cause why the stipulation should not be set aside was granted, and upon the hearing of the order the stipulation was set aside, and the cause reinstated upon the calendar for trial. The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause, and are generally conclusive. 1 Greenl. Ev., §§ 186, 205, 27; Bingham vs. Supervisors of Winona Co., 6 Minn., 137; Gresley's Eq. Ev., p. 458. And while a party may be relieved against admissions of this character made improvidently and by mistake, unless a clear case of mistake is made out entitling the party to relief, he is held to the admission. 1 Greenl. Ev., § 206 ; Gres. Eg. Ev., p. 457-60. And it is at least doubtful whether, if the opposite party has been .induced by the agreement to alter his condition, a mistake can be relieved against. Newton vs. liddeard, 12 Ad. & E., 925, N. S. 13ut in any event, the party denying the mistake must be free from any negligence in the matter. There is no allegation of fraud in reference to the stipulation in question here, but the defendant’s attorney claims [339] that it should be set aside, on the ground of his oversight, or mistake, in omitting to insert a condition in the stipulation, that no other action should at any time be commenced by the plaintiff for the same cause of action. From an examination of the affidavits used on the hearing of the order to show cause, we think it is not shown that the plaintiff’s attorney, by anything he said or did in the matter, induced or occasioned any mistake on the part of the defendant’s attorney. E. G. Rogers, the plaintiff’s attorney, in his affidavit, states that the stipulation was drawn up by him, as it appears in the case, and was submitted to the examination of the defendant’s attorney, and after such examination was signed by him as the attorney of the defendant. This statement is uncontradicted by anything we discover in the affidavits. The stipulation is brief, formal and distinct. The intelligence and legal ability of the defendant’s attorney, precludes any supposition that he was not fully aware of the effect of the stipulation, and the condition alleged to have been omitted, is one of an extraordinary character, and in the affidavit of the plaintiff’s attorney, already referred to, he says he stated to the defendant’s attorney that the only reason why he desired the consent of the latter to the dismissal, was for the purpose of waiving, and not being obliged afterwards to encounter the question as to whether, on a dismissal of said cause by the plaintiff himself, it was necessary for the plaintiff to pay the defendant five dollars statutory costs upon such dismissal, the defendant’s attorney then expressing to the deponent his opinion, that the plaintiff could dismiss said cause on his own motion, without the payment of said sum. Under such circumstances, the oversight or mistake of the defendant’s attorney, by which the condition referred to was omitted, we think must have been such as ordinary [340] care and attention would bave guarded against; and if any special facts existed to cause tbe mistake, tbey are not stated in tbe affidavits, and we cannot presume any sucli. This being tbe state of tbe facts, no ground is shown for setting aside tbe stipulation in any case, perhaps, but certainly not where tbe defendant, as in this instance, relying upon tbe stipulation, has been induced to change his condition, by paying tbe clerk’s costs, dismissing the suit, and commencing another action, which must be defeated at the costs of the plaintiff, if the stipulation is set aside. The order setting aside the Stipulation and reinstating the cause is reversed.