Woodman v. Missionary Society of the Methodist Episcopal Church

Me. Chief Justice Waite delivered the opinion of the court. This writ of error Was docketed here October 12,1885. On the 8th of June, 1887, the parties of record entered into the following stipulation:. “It is hereby stipulated and agreed by and between the parties to this cause, by their respective attorneys, that the writ of error and appeal herein be dismissed and the said causé discontinued without costs to either party; that each party pay his own costs in this court and in the courts below; that the bond for damages executed by plaintiffs in error and sureties be cancelled and the liability of the obligors discharged. ’ “ An order shall be entered with the clerk accordingly.” Our Rule 28 is as follows: “Whenever the plaintiff and defendant in a writ of error *164 pending in this court, or the appellant and appellee 'in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court.” Pursuant to this rule the stipulation of the parties was presented to the clerk of this court, on the 8th of June, 1887, in vacation, and he entered the case dismissed. No mandate or other process has as yet been ordered by the court. Albert M. Henry claims to have purchased from Charles B. Colton and Lester A. Boberts, two of the plaintiffs in error, their respective interests in the land which is the subject matter of the controversy in the suit, on the 16th of May, 1887, before the stipulation was signed. He how comes here and by petition asks “ that an order be entered in this court sotting aside and vacating said order of discontinuance, so that your petitioner may have said cause revived as to himself as the grantee and assignee of said complainants, Colton and Boberts,” on the ground that the stipulation was signed after his purchase and without authority from him. Upon consideration of this petition it is Ordered that the entry of dismissal made m vacation he amended by adchvng thereto these words: “ without prejudice to the right of Albert M. Henry to proceed as he may be advised in the court below for the protection of his in terest.”