Baker Land & Title Co. v. Bayfield County Land Co.

166 Wis. 601 | Wis. | 1918

RoseNberry, J.

The sole question raised on this appeal is, Is the plaintiff entitled to a new trial in accordance with the provisions of sec. 3092, Stats., which provides that the court in which any judgment in ejectment shall have been rendered, otherwise than upon failure to answer, shall, upon application of the party against whom the same was rendered, grant a new trial, upon conditions therein stated ?

Plaintiff’s contention is,that it is entitled to a new trial because, the action being originally one in ejectment, there having been no amendment to the pleadings, the nature of the action has not been changed, and that whatever effect the stipulation between the parties may have had otherwise, it could not operate to change the nature of the action, and that therefore the plaintiff is entitled to a second trial. It is true that if no stipulation had been made as to the nature of the action and the case had proceeded, the same judgment would have been entered as was entered after the making of the stipulation'. The distinction between actions at law and in equity having been abolished and a jury trial having been waived, there could have been no object or purpose in entering into the stipulation with respect to the nature of the action, excepting that the parties mutually agreed that the determination of the court in that action should he final and that each party should waive its right to a new trial under the statute, to the end that the litigation might he finally determined. If the stipulation was not made for that purpose and did not have that effect it was a mere idle formality. The trial judge states in his decision that the action was begun in ejectment but had been changed to an action to quiet title, and all parties so treated it. It is true that in the opinion of this court it was referred to as an action in ejectment. The nature of the action, however, was in no way brought in question here, and the statement is no doubt a mere clerical error. It is claimed, however, that the stipulation being an oral one, and although taken down by the reporter and made a part of the record, it cannot be binding upon another trial. Guaranteed Inv. Co. v. Van Metre, 158 Wis. 262, 265, 149 N. W. 30. If the stipulation was valid and effectual for any purpose upon the first trial, the nature of the action was thereby changed from an action in ejectment to an action to quiet title, and, the judgment having been affirmed by this court, there can be no other trial. That an oral stipulation made in open court during the course of a trial and taken down by the reporter and acted upon by the parties is a valid and binding stipulation, is established beyond doubt, and it is not within the rule that stipulations in actions to be binding must be in writing. Lewis v. Wilson, 151 U. S. 551, 14 Sup. Ct. 418; Savage v. Blanchard, 148 Mass. 348, 19 N. E. 396; 36 Cyc. 1282 and eases cited.

The effect of the stipulation made and acted upon by the parties and the court was to change the nature of the action, from and after the making of which it became an action to quiet title although the pleadings were not formally amended, and thus the judgment of this court became a final judgment in an action to quiet title, and therefore the circuit court was without any power to grant a new trial, and the order appealed from must be affirmed.

By the Gourt. — Order affirmed.