19 Ind. App. 227 | Ind. Ct. App. | 1898
— Appellee, who was plaintiff below, filed with the auditor of the county, in the commissioners’ court, a claim in the following words and figures, to wit: “Levi H. Scott, the claimant herein says that said board of commissioners of the county of Floyd
The claim thus filed was duly verified by appellee, and at the regular September term, 1895, of the board of commissioners, one Charles D. Kelso, as attorney for the board, filed a written motion to dismiss the claim, the reason stated in the motion was that the complaint or claim did not state sufficient facts to constitute a valid claim against the county. This motion the court overruled, and the record shows that an exception was reserved to such ruling. The record further shows that the board heard evidence, refused to allow the claim, and entered an order of dismissal. Whereupon the appellee filed his appeal bond, and the proceedings were certified to the circuit court. In
“Be it remembered that on the 29th day of November, 1895, when said case was called for trial, the plaintiff by Evan B. Stottsenburg, his attorney, stated in open court, addressing the Hon. Jacob Herter, Judge of the Floyd Circuit Court, ‘there will be a judgment by consent in this case in favor of the plaintiff.’
“Mr. Charles D. Kelso, attorney of record for the defendant, in open court, said: ‘That is right,' your honor, Mr. Stottsenburg will prepare the order.’ And that was all the evidence given in the cause.” These are the facts appearing from the record essential to the determination of the questions presented. Plaintiff has assigned as error, (1), that the court erred in overruling appellant’s motion to dismiss; (2), that the complaint does not state facts sufficient to constitute a cause of action, and (3), that the court erred in overruling the motion for a new trial. Appellant in its brief discusses the first and second specifications of the assignment of errors together, for the reason as stated, that they “both assail the sufficiency of the complaint.” We cannot agree with counsel in this, for we do not think that the first assignment presents any question for review. The record shows that in the commissioners’ court, appellant by its attorney, moved to dismiss the claim on the ground that it did not state facts sufficient, etc. In cases of this character on appeal from the commis
But it has been repeatedly held that where the reasons for a motion to dismiss a cause do not appear by bill of exceptions, they are not in the record, and the appellate court cannot review a ruling denying the motion. Long v. Town of Brookston, 79 Ind. 183; Hicks v. State, ex rel., 83 Ind. 483; Lippman v. City of South Bend, 84 Ind. 276; Evans v. Schafer, 88 Ind. 92; Smith v. McDonald, 3 Ind. App. 49; Yost v. Conroy, 92 Ind. 464, 47 Am. Rep. 156; Sheeks v. Fillion, 3 Ind. App. 262.
It is impossible for the court to know from the record before us, whether or not the court erred in overruling the motion to dismiss, for there is no means of knowing from the record the basis or reason of the motion, and hence we cannot pass upon it. But if under the facts as shown by the record, the appellant can raise the question of the sufficiency of the complaint, and the complaint is defective, then it can get the relief desired under the second specification in
It is evident from this, that the parties, by counsel at least, had agreed upon the terms of settlement, and a basis upon which judgment should be rendered. There is no pretense that Mr. Kelso was not authorized to act for appellant. He was its attorney of record, and,an agreement made by him in open court and entered or record, was, in the absence of fraud or collusion, binding. There is nothing in the record to show that there was any fraud or collusion in the agreement that judgment might be entered. “An attorney being an agent, duly authorized, his acts are those of his client; the client is therefore bound by all the acts of his attorney in the course of legal proceedings, in the absence of fraud or collusion, and he cannot plead the negligence of his attorney as a ground for relief.” 3 Am. and Eng. Ency. of Law, (2 ed.), p. 324. In support of the above proposition, many authorities are cited.
In Harvey v. Fink, 111 Ind. 249, it was held that where a party is in court by his attorneys when an order is made granting the opposing party a' new trial as of right, and does not object thereto, he cannot afterwards move to vacate the order upon the ground that it was made without his knowledge or consent.
In Hudson v. Allison, 54 Ind. 215, the question decided was much like the one before us. There, the assignment of error called in question the sufficiency of the complaint. The record showed that the parties to the action appeared by their respective attorneys,
The recent case of the Indianapolis, etc., R. W. Co. v. Sands, Tr., 133 Ind. 433, is strongly in point. In that case an agreement in writing was made by and between the parties through their respective attorneys on February 26, 1891, that judgment should be rendered in favor of the plaintiff on June 26, 1891. On the last named date judgment was duly rendered according to the terms of the agreement. Olds, J., speaking for the court said: “We think the cause, as to the parties entering into the agreement and consenting to the judgment, should not be considered on its merits, but should be affirmed, and this conclusion we think well supported by many well settled rules in addition to, and independent of, the decisions holding that a case will not be considered oh its merits, when a consent-decree is entered. It is a rule too well settled to require the citation of authority, that, if a party induces a cqurt to make a ruling on the trial of a cause admitting incompetent evidence, he cannot be heard to complain if the court adheres to the same
“It is alike a well settled rule that if one consents, or even does not object, when he has an opportunity to do so, to the introduction of improper evidence, he can not afterwards predicate error on a motion to strike it out. * * * 'A party cannot, by request or by his consent, induce the court to make a ruling or enter a judgment which is erroneous, and then immediately challenge it as erroneous, and procure a reversal on account of a ruling, or an act done by the court at his instance or with his consent. * * * It is a well settled rule that a judgment entered by agreement by a court of general jurisdiction, having power in a proper case to render such a judgment, and having the parties before it, will bind those by whose agreement it is entered notwithstanding the pleadings would not, in a contested case, authorize such a judgment,” — citing Fletcher v. Holmes, supra.
Continuing, the learned judge said: “When a judgment is rendered by agreement, it is immaterial to determine as to whether or not the complaint is sufficient, for if the judgment be one which the court had the right to render, and the parties are in court, the judgment would be valid, and if by consent of the defendant, or induced by the parties, the court exceeds its jurisdiction, the judgment may be void in so far as it exceeds jurisdiction, but we see no reason why a defendant should question on appeal such ruling any more than any other erroneous ruling he induces the court to make. He has agreed to the judgment, he is bound by it, and it should stand with whatever validity it may possess.”
In Knoblock v. Mueller, 123 Ill. 554, 17 N. E. 696, it was said: “Decrees of courts of chancery, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and privies as are judgments at law; and a decree by consent, in an amicable suit, has been held to have an additional claim to be considered final * * * Decrees so entered by consent cannot be reversed, set aside or impeached by a bill of review or a bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact given, or something was inserted as by consent that was not consented to. * * * It is the general doctrine that such a decree is not reversible upon appeal or writ of error, or by bill of review, for error.” If upon principle, and the authorities cited there could be any doubt about the rule, the question has certainly been put at rest by the Supreme Court of the United States in Pacific Railroad v. Ketchum, 101 U. S. 289. It was there held that a consent decree in the circuit court could be appealed from; that when it appears of record that the defendant' assented to a decree, through its solicitor, it is equivalent to a direct finding as a fact by the court, that the solicitor had authority to do what he did, and it is binding on appeal so far as the question is one of fact only.
Mr. Chief Justice Waite wrote the opinion of the court in that case, and from the body of the opinion we quote the following: “Parties to a suit have the right to agree to anything they please in reference to the subject-matter of their litigation, and the court, when applied to, will ordinarily give effect
It was further held in the last cited case, that if fraud entered into the agreement, the party complaining should have applied to the court in which the fraud was perpetrated, in the first instance, for relief.
In the case before us, the jurisdiction of the court below, both over the subject-matter and the parties, ■was complete. The case reached the circuit court in a regular way by appeal, and the appellant was properly in court. The agreement by which judgment was entered, did not affect the jurisdiction of the court over the subject-matter, for such jurisdiction is not questioned. The court had jurisdiction to render such judgment as the pleadings and facts warranted, and, by the agreement, all proof or evidence was waived. If the complaint was insufficient, its defects were waived by the agreement, and the finding and judgment of the court thereunder. There is no showing in the record but what the judgment and decree were in exact conformity to the agreement, and, in the absence of such showing, we must presume they were.
It seems clear to us, that after this has been done, a party to such agreement, — an agreement sanctioned by the solemn judgment of the court, — cannot, and ought not to be permitted to have the judgment or decree changed, modified, or reversed, without first showing some fraud or mistake by which he was induced to enter into the agreement, and ask the court to enter the decree, or without showing some valid reason why he should be relieved from it. Such a doctrine or rule would be at variance and out of harmony with the rules of practice, and in conflict with the great weight of authorities. See Indianapolis, etc., R. W. Co. v. Sands, Tr., supra.
In the bill of exceptions it is stated that Mr. Stottsenburg, attorney for appellee, addressed the court and said: “There will be a judgment by consent in this cause in favor of the plaintiff,” to which Mr. Kelso, attorney for appellant replied: “That is all right your honor; Mr. Stottsenburg will prepare the order.” This follows the expression: “And that was all the evidence given in the cause.”
The first reason assigned in the motion for a new trial was that the finding of the court was not sustained by sufficient evidence; and second, that the finding was contrary to law. We do not think any
Appellant’s second reason for a new trial is not available, for the reason that the court had jurisdiction both of the subject-matter and of the parties, and had power to render a judgment by agreement, in the absence of any evidence whatever. Appellant insists that the complaint is defective: (1), Because it does not show that the appellee was entitled to any relief, and (2), that it is not sufficiently certain to bar another action. From what we have said it is unnecessary for us to decide these questions, for they are waived by the agreement for the entry of judgment.
The learned counsel for appellant in his discussion of the third assignment of erors, which calls in question the overruling of the motion for a new trial, says: “When the order or judgment of a board of county commissioners has been made and v recorded, the authority of the commissioners is exhausted, and they have no right to change or vacate it, and of course they cannot disregard it.” With this proposition, in the abstract, we are in full accord, but counsel’s reasoning, while ingenious, has no application to it. Counsel says that the board having rejected the claim, it had no power to vacate and disregard its own order, even by another formal entry, and what the board eould not do directly, its attorney could not do indirectly. He further says, that the judgment by agree
In this case the appellant did not change, vacate, or disregard its order, but agreed that judgment should be entered against it, in a superior tribunal, having jurisdiction of the subject-matter and the parties to the action.
It may be that appellant has been imposed upon, and that a fraud has been perpetrated, to its injury; but it does not so appear from the record, and we find no error for which the judgment can be reversed. Judgment affirmed.