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It is held in some jurisdictions that an agreement not to take a subsequent appeal is not binding: 40

8. Stipulation by client.]—A stipulation by a party, without knowledge or consent of his attorney, and relating to matters of procedure only, is not binding. 41 A party may sometimes be bound by his own stipulation made in disregard of his attorney's right, although it be one which is not binding as against the attorney.

In such case an application for relief from it, because the attorney's rights were disregarded, must come from the attorney. An application from the party, though ostensibly in the interest of the attorney, may be denied. 42

9. Stipulation to be construed with reference to its purpose.] -A stipulation is to be construed with reference to the apparent purpose for which it was given.43 Thus, a stipulation dispensing with formal proof of a fact will, unless restricted by its terms, be binding through all stages of the case.44 A stipulation that

they will submit to a decision against them which takes from them a large amount of property; and when the counsel undertook to decide for them, he exceeded his powers, and made a stipulation into which he had no right to enter”). Contra, Pike v. Emerson, 5 N. H. 393, and Connett v. The City of Chicago, Legal Adviser (Ill., June, 1885), 239 (where a particular question was submitted, and it was held that having experimented for a decision, the party was bound by the waiver).

40 Runnion . Ramsey, 93 No. Car. 410..

41 Bonnifield v. Thorp, 71 Fed. Rep. 924; Jackson v. Cole, 81 Mich. 440; Webb r. Dill, 18 Abb. Pr. 264.

42 McBratney v. Rome, etc., R. R. Co., 87 N. Y. 467, refusing to set aside, on application in the client's name, a discontinuance entered on the client's stipulation. The court (ANDREWS, Ch. J.), say: “ The right of the attorney to have the discontinuance set aside for his protection is not involved in this appeal. The appellant is the party to the action, who signed the stipulation on which the order of discontinuance was entered, and unless she is entitled to have it set aside on her own account, she has no right to that relief, on account of the attorney."

Conversely, an attorney's stipulation with a condition “if the defendant [his client] does not object," cannot be defeated by an objection made by the attorney without the knowledge of his client, though it might be by dissent of the client. Hellman v. McWhennie, 3 Rich. L. 364.

43 Huntington 1. Saunders, 166 Mass. 92, 43 N. E. Rep. 1035; Abbott v. Lane (Nebr., 1905), 95 N. W. Rep. 599 (to be construed like any other agreement).

44 See Stemmler r. Mayor, 179 N. Y. 473; Voisin v. Commer. Mut. Ins. Co., 67 Hun, 365, 22 N. Y. Supp. 343 (so holding as to a stipulation made during a preceding trial). Herbst 1. Vacuum Oil Co., 68 Ilun, 222, 22 N. Y. Supp. 807 (notice that the party will no longer consider itself bound is ineffectual).

the proceedings in one cause be stayed until final judgment in another may be construed to refer to ultimate judgment after appeal.45 A stipulation to discontinue an action includes, as a consequence, the vacation of a judgment entered therein.46 A stipulation that “ the complaint is in proper form ” is an admission of a cause of action ;47 that certain papers may be read in evidence involves a consent that they be considered legal evidence. 48 While a stipulation given to obtain the payment of money, pursuant to the judgment appealed from, and engaging to repay it if final judgment be had in favor of the party to whom the stipulation is given, may be construed as requiring repayment when he recovers judgment upon the merits on a new trial after reversal, although there may be further appeals, and the ultimate result remain uncertain.49

Evidence to explain intent with which a stipulation was entered into is not admissible.50

10. Relief from stipulation.]— Until revoked by some competent authority, a stipulation which is within the power of an attorney to make is conclusive, and a violation of its terms will not be permitted.51 The court in which the proceedings, in which a stipulation was made, were pending, have full power however, in its discretion,62 to relieve a party from a stipulation in the cause, made by the party or his attorney.53 This power does not extend to a stipulation already executed and performed, and against which neither fraud nor collusion is shown.54 Nor can the power be exercised in a case where the party seeking to be relieved has had the full benefit of the consideration for which the stipulation was given, and the parties cannot be restored to their original position.56

45 See p. 444, note 79, of this volume.
46 Deen 1. Milne, 113 N. Y. 303.
47 Fletcher v. Mass. Ben. Assn., 78 Hun, 311, 29 N. Y. Supp. 173.
48 Thompson v. Thompson (Ala., 1890), 11 L. R. A. 443.

49 Valentine v. Central Nat. Bank, 10 Abb. N. C. 188. But a stipulation referring to the “ final determination ” of the action, or a “ final judgment,” is generally construed to refer to a final determination upon appeal taken. See Laney v. Rochester Ry. Co., 81 Hun, 346, 30 N. Y. Supp. 893; Stedeker t. Bernard, 93 N. Y, 589; Dean t. Marschall, 90 Hun, 335, 35 N. Y. Supp. 724.

In Woodruff v. Woodruff, 52 N. Y. 53, the parties, for the purpose of avoiding litigation, agreed that if the question in dispute should thereafter be decided adversely to defendant's claim,, he would make an additional pay. ment. The question was afterwards so decided in Hepburn 0. Griswold, 8 Wall. 603, but the same court overruled this decision in Knox t. Lee, 12 Wall. 457. Defendant claimed that the latter decision should control. Held, that plaintiff was entitled to recover.

50 Schroeder v. Frey, 60 Hun, 58, 14 N. Y. Supp. 71. But the identity of the cause in which the stipulation was given may be ascertained, if mistake made in naming parties. Eidam v. Finnegan, 48 Minn. 53, 16 L. R. A. 507, 50 N. W. Rep. 933.

51 Casey v. Leslie, 12 App. Div. 34, 42 N. Y. Supp. 362; Eames v. Bagg, 8 App. Div. 541, 40 N. Y. Supp. 858; Clason v. Baldwin, 152 N. Y. 204; Muller v. Dows, 94 U. S. 277. Notice to adversary that the party will no longer consider himself bound is ineffectual to relieve. Herbst v. Vacuum Oil Co., 68 Hun, 222, 22 N. Y. Supp. 807. Compare, Wallace v. Matthews, 39 Ga. 619, 99 Am. Dec. 473.

11. Rules of discretion.]– The general principles which the courts usually recognize in the exercise of this discretion are:

(1.) Attorneys are presumed to stipulate intelligently and advisedly, and in terms accurately expressing their intention. Hence, mere ignorance, mistake, or inadvertence is rarely deemed

52 Chase v. Defendorf, 128 N. Y. 652; Tauziede v. Jumel, 138 id. 431.

53 Barry v. Mut. Life Ins. Co. of N. Y., 53 N. Y. 536, where relief was granted after discontinuance of the action, pursuant to the stipulation. The court (per ALLEN, J.), say: “ It is not an unusual thing to relieve parties from stipulations made in the progress of the action; and courts have always regarded this as within their power, and the exercise of it is frequently neces. sary to promote justice and prevent wrong.

" In Malin v. Kinney (1 Caines, 117), a party was relieved from a stipulation that two causes should abide the event of two others, after the latter had been tried. A like agreement, made in open court, was set aside and vacated in The Hiram, 1 Wheat. 440. Ch. J. Marshall says: “If a judg. ment be confessed under a clear mistake, a court of law will set that judgment aside, if application be made while the judgment is in its power.' See also Buck v. Farralt, 3 P. Wms. 242. Even a release may be set aside on motion for fraud. Ferris v. Crawford, 2 Denio, 595, per Bronson, Ch. J., p. 604. Other cases might be referred to, but these suffice to show, upon authority, that the court below had control of the order entered by consent, and power to relieve the parties from their stipulation.

" Whether the causes assigned were sufficient to justify the court in the exercise of the power, was exclusively for that court to determine; there certainly was not an entire absence of a foundation for the application. It is true, as urged by the appellants, that the stipulation was in the nature of a compact or agreement of the parties, and valid per se; but, like other compacts and agreements made in the progress of an action, and affecting proceedings in it, it was liable to be dealt with summarily by the court, so long as the parties could be restored to the same condition in which they would have been if no agreement had been made.”

Harvey v. Thorpe, 28 Ala. 250 (relief given at the trial by admitting evi: dence contrary to admission in stipulation).

Wells v. Jackson, etc., Mfg. Co., 48 N. H. 491; Wells v. Am. Express Co., 49 Wis. 224; and see p. 77 of this volume.

In Becker v. Lamont, 13 How. Pr. 23, it was held that a stipulation, plainly entered into under ignorance or mistake, and pertaining merely to the conduct of the suit, and no part of the issue to be tried, is a proper case for relief upon motion.

54 Jack r. City of Buffalo, 87 N. Y, 184; Morris v. Press Pub. Co., 98 App. Div. 143, 90 N. Y. Supp. 673.

55 Morris v. Press Pub. Co., supra.

a ground for relief,56 unless the stipulation relates to the procedure in the action and either that it was entered into inadvisedly or that it is inequitable to hold the parties to it.57 Mistake of attorney in stipulating as to the existence of a material fact as true, which is not true, is usually held to be ground for relief.58

(2.) Change of purpose or wish, upon facts which were known at the time of stipulating, is not a ground for relief,59 unless the attorney is acting for a party non sui juris, 60 or in the public interest, and performance of his duty calls for relief.61

(3.) An applicant for relief should show not only excuse and · hardship, but also good faith; and for this purpose notice of

56 Van Horn v. Burlington, etc., Rv. Co. (Iowa, 1886), 28 N. W. Rep. 547 ; McKinley v. Wilmington Star Min. Co., 7 Bradw. 386 Mignorance no ground).

Chapman v. Coats, 26 Iowa, 288 (mistake no ground).

Keogh r. Main, 52 N. Y. Super, Ct. 160 (a stipulation which has the force of a contract may not be set aside, except for a ground which would call for the annulment of the contract).

Van Nuys v. Titsworth, 57 Hun, 5, 10 N. Y. Supp. 507 (a stipulation which merely relates to the prosecution or discontinuance of the action is not a contract and the court may relieve if entered into improvidently or unadvisedly, and made by a party rather than an attorney).

57 See Magnolia Metal Co, v. Pound, 60 App. Div. 318, 70 N. Y. Supp. 231, Higgins v. Starin, 39 App. Div. 533, 57 N. Y. Supp. 306; Van Nuys 0. Titsworth, supra; Sperb v. Met. Elev. Ry. Co., 57 Hun, 588, 10 N. Y. Supp. 865, afld, 123 N. Y. 659.

58 Ward 1. Clay, 82 Cal. 502, 23 Pac. Rep. 50; Welsh v. Noyes, 10 Colo. 133, 14 Pac. Rep. 317; Paschall v. Penry, 82 Tex. 673, 18 S. W. Rep. 154. Especially when made without knowledge or authorization of the party. Calvert-Rogniat v. Merc. Trust Co., 46 Misc. 20, 93 N. Y. Supp. 241.

59 Conner v. Belden, 8 Daly, 257. (Stipulation for judgment of dissolution of partnership held to make it error to grant motion inconsistent therewith. )

Avery v. Avery, 5 Misc. 75, 24 N. Y. Supp. 737 (stipulation for discontinuance and settlement of action will not be set aside on application of party because the lien of his attorney for costs was cut off).

60 A guardian ad litom, or his attorney, cannot usually stipulate away a substantial right of the infant, and a question of power is therefore frequently involved. But such guardian, or attorney, may stipulate as to matters which merely affect the progress of the cause. See Kingsbury v. Buckner, 134 U. S. 651; McCloy v. Arnett, 47 Ark. 445.

61 Mayor, etc., of N. Y. v. Union Ferry Co., 9 Wkly. Dig. 558 (holding it proper to relieve counsel, especially as he was the official counsel of a city, from a stipulation, inadvertently or unwisely made, admitting facts for the trial; the application being made on motion before trial).

S. P., Matter of Smith, 9 Abb. N. C. 452 (receiver relieved from agreed statement of facts). Cowen v. King, 54 App. Div. 331, 66 N. Y. Supp. 621 (id., as to costs).

Dryer v. Brown, 24 Abb. N. C. 144, 10 N. Y. Supp. 53 (executor relieved from stipulation requiring written pleadings in a reference upon a disputed claim).

But even the State may be bound by estoppel on even an oral stipulation. People v. Stephens, 52 N. Y. 306.

intent to get rid of the stipulation should be given promptly02 after the intent exists.

(4.) But good faith on both sides is requisite; hence an entire want of mutuality in an attorney's stipulation, prejudicial to his client and in favor of the other party,63 or fraud in obtaining a stipulation, even though only by the use of illusory promises, is ground for relief.64

(5.) The fact that the parties cannot be placed in statu quo is often ground for denying relief where it would be otherwise

granted. 65

Lastly, if the application for relief raises a serious conflict of evidence, the applicant may be left to an action.66

12. Enforcement of stipulations.] — Parties may stipulate both as to the facts from which their dispute arises, and as to what the law is which governs such dispute; and the court will enforce both classes of stipulations (no question of public policy preventing).662

The court has power to enforce in a summary way, by motion, the observance of an undisputed and proper stipulation entered into by the parties to the action. A stipulation is a contract between the parties whose attorneys sign it, and the mere fact of its form does not preclude an action for its breach, if the breach be otherwise a good cause of action.67

Hence an action lies for relief upon a stipulation: аs, for instance, to recover money stipulated to be paid,68 or to establish a lost or withheld stipulation, and cancel a judgmento9 taken in violation of it; or to cancel a stipulation on the ground that it was obtained by fraud or undue influence.To

62 Seaver v. Moore, 1 Ilun, 305; Milbank v. Jones, 17 N. Y. Supp. 464, 42 St. Rep. 692.

63 Howe 1. Lawrence, 22 N. J. L. 99.

64 Abbott r. Abbott, 18 Neb. 503, 26 N. W. Rep. 361; 8, P., Clark v. Taylor, 37 Hun, 312. 63 Johnson v. Wright, 19 Geo. 509.

66 Page 78 of this volume; and see Charless v. Miller, 36 Ala. 141; Milbank . Jones, 17 N. Y. Supp. 464, 42 St. Rep. 692. Compare Howe 1. Lawrence, 22 N. J. L. 104. 662 Matter of Cullinan (Burr Certif.), 113 App. Div. 485. 67 Potter r. Rossiter, 109 Anp. Div. 737, 96 N. Y. Supp. 177.

68 Davidson v. Davidson, 29 Apr. Div. 629, 52 N. Y. Supp. 7; Harris v. Elliott, 19 App. Div. 60, 45 N. Y. Supp. 916; Valentine r'. Central Nat. Bank, 10 Abb. N. C. 188 (conceding that there is usually also a remedy by motion, if the facts are not too doubtful.)

* Deen v. Milne, 113 N. Y. 303, aff'g, 15 Abb. N. C. 350. 70 Page 79 of this volume, note 32.

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