| Mont. | Jun 13, 1898
Appeal from a special order made December 28, 1897, after final judgment. On October 11, 1897, the
Testimony was given tending to prove prior oral consent out of court by counsel for plaintiffs to the extension of 30 . days which the order granted; while plaintiffs’ counsel testified to the effect that such consent was to an enlargement of 10 days only. It clearly appeared, however, that whatever agreement was made or consent given was oral only, and p.ior to October 11, and was not made or given in court.
We think the motion should have been granted. Subdivision 1, of Section 398, of the Code of Civil Procedure enacts that an attorney and counselor has authority “to bind his client in any step's of an action or proceeding by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise.” Bule 21 of the court below is as follows: “Agreements. No agreement or consent between the parties, or their attorneys, in respect to the proceedings in a cause, will be regarded by the court, unless the same shall have been in open court and at the time entered in the minutes, or unless the same shall have been in writing, subscribed by the party against whom the same may be urged, or by his attorney. And it shall be the duty of the party relying upon any such minute entry to see that the same is duly entered.”
It is, perhaps, scarcely necessary to observe that neither the statute nor the rule quoted was designed to prevent the enforcement by the courts of executed oral agreements or stipulations admitted by the party or his attorney against whom they are alleged, although neither reduced to writing
Whether, within the principles announced in Stevenson v. Cadwell, 14 Mont. 311" court="Mont." date_filed="1894-04-02" href="https://app.midpage.ai/document/stevenson-v-cadwell-6638414?utm_source=webapp" opinion_id="6638414">14 Mont. 311, 36 P. 185" court="Mont." date_filed="1894-03-19" href="https://app.midpage.ai/document/in-re-mouillerats-estate-6638396?utm_source=webapp" opinion_id="6638396">36 Pac. 185; Martin v. De Loge, 15 Mont. 343" court="Mont." date_filed="1895-02-18" href="https://app.midpage.ai/document/martin-v-de-loge-6638595?utm_source=webapp" opinion_id="6638595">15 Mont. 343, 39 Pac. 312; Symons v. Bunnell (Cal.) 20 P. 859" court="Cal." date_filed="1889-03-15" href="https://app.midpage.ai/document/symons-v-bunnell-5453575?utm_source=webapp" opinion_id="5453575">20 Pac. 859, and United, States v. Breitling, 20 How. 252" court="SCOTUS" date_filed="1858-02-25" href="https://app.midpage.ai/document/united-states-v-breitling-87152?utm_source=webapp" opinion_id="87152">20 How. 252 — and under the circumstances disclosed — the court rightly suspended Rule 21, supra, so as to except the case at bar from its operation, we do not decide. It is sufficient to hold that the provision of the statute has been disregarded. Neither in their briefs nor oral arguments have counsel cited or called attention to Section 398, from Avhich Ave infer that the error committed by the learned trial judge was occasioned by the omission of counsel to imroke the enforcement of its provisions.
It is further contended that, under the provisions of Section 774 of the Code of Civil Procedure, the court below might have relieved defendant against a proceeding taken against it through its mistake, inadvertence, surprise or excusable neglect. But defendant did not ask for such or any relief. Conceding as correct the doctrine of Stonesifer v. Kilburn (Cal.) 29 P. 332" court="Cal." date_filed="1892-03-26" href="https://app.midpage.ai/document/stonesifer-v-kilburn-5445875?utm_source=webapp" opinion_id="5445875">29 Pac. 332, and Robertson v. Williams, 81 Cal. 268" court="Cal." date_filed="1889-11-22" href="https://app.midpage.ai/document/robertson-v-williams-6554045?utm_source=webapp" opinion_id="6554045">81 Cal. 268, 22 P. 665" court="Cal." date_filed="1889-11-26" href="https://app.midpage.ai/document/graves-v-mono-lake-hydraulic-mining-co-6554053?utm_source=webapp" opinion_id="6554053">22 Pac. 665, the facts in this case do not warrant its application.
Defendant next urges that the motion was rightly denied because plaintiffs, on November 10th, accepted the proposed statement, offered amendments thereto, and participated in the settlement, all without protest or objection. If this be true, there can be no doubt that plaintiffs may not successfully complain of the service out of time; for the objection that the proposed statement was not served in time must be reserved before offering amendments, or at the time they are offered, and, if not so reserved, the objection is forever waived. (Hayne on New Trials and Appeal, Secs. 145, 146; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642; Sweeney v. Great Falls and Canada Railway Co., 11 Mont. at page 37, 27 Pac. 348.) There is, however, nothing in the record certified to us which tends to support the assertion of counsel; and, if there were we do- not perceive in what way such fact could enable us to say, upon the present appeal, that the order of October 11th should stand. The sole question presented is whether the court below, in making that part of the order-attacked, failed to observe and give effect to the provisions of
Holding, as-we do, that the supposed agreement recited in the order of October 11th was not made in the mode prescribed by the statute, it follows that the order of December 28, 1897, must be reversed, and the court below directed to correct the order of October 11th by striking therefrom the words, £lby consent of plaintiffs;” and it is so ordered.
Reversed.