20 Kan. 414 | Kan. | 1878
The opinion of the court was delivered by
The facts in this case were substantially as follows: On the 28th of April 1877, one J. Q,. Howey, and Andy J. Cary, the defendant in error, commenced their separate actions against plaintiff in error before the same justice of the peace, to compel contribution from him, as a coindorser, or guarantor, on a note. On the 18th of June 1877, both actions came on for trial, and in the case of Cary against Edwards, the parties made and filed the following stipulation:
{Court, and Title.) “Whereas, There is a case pending between one J. Q. Howey and the defendant, E. H. Edwards, in the same court, before the same justice, involving the same questions, as to the right of said Howey (who, with said Cary, plaintiff herein, claims to be co-surety of the said Edwards,) to compel contribution of and from the said Edwards, for an amount paid by them on a judgment in favor of J. V. Pierce, and against said Howey and Cary, rendered*416 by W. P. Talbot, Esq., J. P., and accounting, by said Edwards, of certain moneys, received by him, proceeds of property claimed to apply on said debt:
“Now it is hereby expressly agreed and stipulated, by and between the parties to this, the above-entitled suit, that whatever judgment shall be recovered against said Edwards in the said action of Howey v. Edwards, shall be entered and shall stand as the judgment in this case, without any trial in this case, or any other evidence as to amount than the judg-; ment in the case of Plowey v. Edwards; provided, that said case shall be tried upon its merits; excepting also, the costs, which shall be taxed, in either case, the same as if this stipulation had not been made.”
Both cases were continued to 25th June 1877, at which time the trial of the Howey case commenced before a jury, and occupied two days. At the request of Howey, the justice of the peace directed the jury, in addition to the general verdict, to find upon the following written questions of fact:
“lst.-When Edwards took the chattel mortgage, were he and the plaintiff, and one Cary, co-sureties, or guarantors, or indorsers of the note first mentioned ?
“2d.-At the same time, was Edwards the payee and holder of the note and mortgage second named, as his individual claim against the mortgagor, Freeman?”
The jury returned both of said questions of fact answered in the affirmative, and returned a general verdict in favor of Howey. Whereupon counsel for Howey announced in open court, that as it was too late in the evening for further business, they would on the next morning move the court to render judgment upon the special findings of fact, together with the general verdict of the jury, and the undisputed evidence in the case. On the next morning, counsel for both parties appeared in court, and attorneys for Edwards gave notice that they would move the court to set aside the general verdict, and for judgment in favor of Edwards upon the special findings; and thereupon, attorneys for Howey filed the motion of which they had given notice the preceding evening. The hearing of both motions was, by agreement of attorneys for the respective parties — at request of Edwards’ counsel — set
Edwards alleges as error, that the stipulation between the parties to this action, filed before the justice on the 18th of June, is not sufficient to uphold the judgment, notwithstanding the recovery in the case of Howey v. Edwards; and he refers to Gittings v. Baker, 2 Ohio St. 21, as authority. While it is true, that adversary parties to a suit cannot by contract require the court to try their cause contrary to the established rules of judicial proceedings, and all contracts made to effect such a purpose are void, there is nothing in the stipulation conflicting with the rules of judicial proceedings. The cases were pending at the same time, before the same justice, on a similar cause of action, based upon the same note, and involving identically the same facts and principles, and ought to have resulted in like judgments. The attorneys for the plaintiff in the case of Howey v. Edwards were likewise the attorneys of the plaintiff in Cary v. Edwards; and Edwards was represented by the same attorneys in both cases. The agreement was, that if the case of Howey v. Edwards was tried upon its merits, like judgment was to be entered in this
It is further claimed that the injunction should not have been discharged, as it is alleged the judgment in favor of Cary v. Edwards was absolutely void, for the reason that the court lost all jurisdiction of the case. The argument is, “that the justice was not authorized to continue the case on his own motion, from the 18th of June to the 25th of June; and even if he had that power, the case was discontinued on the 25th of June, as no action was taken in the case until the 29th of June.” The answer to this is, the stipulation carried the case of Cary v. Edwards with the case of Howey v. Edwards until the judgments were rendered in the cases before the justice. The adjournment from the 18th to the 25th of June was made when the attorneys were present; and on the 25th, the parties and attorneys in the case of Howey v. Edwards were present and attended to the case till June 29th, when that case was determined; and thereon the justice, in pursuance of the written stipulation of the parties in case of Cary v. Edwards, entered a like judgment in this case.
It is unnecessary to pass upon the question whether there was any error committed by the justice in the case of Howey v. Edwards in the rendition of that judgment, as it is evident
The judgment and order of the district judge dissolving the injunction heretofore granted, is affirmed.