135 Ill. App. 258 | Ill. App. Ct. | 1907
delivered the opinion of the court.
The foregoing statement from the record is made for the purpose of setting forth the general scope of the pleadings and the relief sought, and to emphasize the .limitations within which the decree was formulated. The record does not disclose any hearing before the court or any motion made prior to the entry of the decree, and no order other than the decretal order appears in the record. There is no evidence of any character in the record. Neither can we find any agreed statement of facts in the record to supply the absence of other proof. Nor are there sufficient admissions in the pleadings to sustain the vital findings of fact in the decree. Every material fact, pro and con, in the bill and the cross-bill necessary to sustain a decree for either party is denied by the answers in the record. The only information vouchsafed us shedding any light whatever as to the manner of procuring the decree to be entered by the chancellor, is the statement on page 18 of appellant’s brief. We quote it:
“There was no formal hearing upon the bill and cross-bill. It should be stated that a motion was made by complainant in the original bill for an order opening the stairway during the pendency of the litigation. On affidavits filed and upon the presentation of that motion, the court intimated what his finding might be, as it seemed to be a question that would finally have to be determined before the higher courts, whereupon a draft of a decree was prepared by counsel for the city, which was not satisfactory to counsel for 'The Fair,’ when a draft of a decree was prepared by counsel for ‘ The Fair, ’ and upon conference between counsel, this draft was modified to some extent and then presented to the judge by both parties, and by the judge signed. It should be stated here that the other part of the decree was in accordance with the announcement of the court. While the decree recites evidence was heard, as a matter of fact no evidence was heard, it being the intention to embody in the findings everything that conld be proved by the parties.”
There is no motion in the record for an order allowing the opening in the stairway to remain during the pendency of the litigation, nor affidavits of any kind supporting or in opposition to such alleged motion, and the record is equally silent as to any views which the learned chancellor may have had, if any, either on the law or facts as applied to such a motion if made, or upon the questions involved in the litigation. The record furthermore is as uncommunicative as to the facts recited in the decree resting upon any announcement of the chancellor, as it is in other respects in matters alleged to have transpired before him.
The record, with the assignment of errors thereon, in the condition in which we find it, presents no question calling for our review. The only questions for us to determine are whether the decree is so erroneous in finding no support in the record that it should therefore be reversed, or treating it as a decree entered by consent of the parties and consequently binding upon them, that it should therefore be affirmed.
After appellant’s counsel failed to concur in the draft of a decree prepared and presented to them by counsel for the city, they drew a new draft and went into conference with the counsel for the city; thereupon such draft “was modified to some extent and then presented to the judge by both parties and by the judge signed.” This language, with nothing in the record in contradiction, is susceptible of but one construction, viz.: that the counsel for the respective parties agreed upon the terms of the decree and consented to its entry by the chancellor. The decree was presented by both of the parties to the court, and without anything more than their joint request being made, without proof of any sort, and without argument, it was entered. The manner of procedure, holding in view the record, stamps the decree so entered as a decree entered by the consent of the parties. It is a consent decree. A decree thus obtained cannot be said to be a judicial sentence, but the solemn and binding agreement of the parties. Such a decree is not reviewable. Winchester v. Winchester, 121 Mass. 127. As early as Armstrong v. Cooper, 11 Ill. 540, it was declared as matter of law that a decree by consent could not be appealed from, nor error assigned upon it. The court went to the extreme of holding that no rehearing could be had in a cause upon a decree so entered, and that such decree could not even be disturbed by bill of review—citing 1 Barber Ch. Pr., 373. This case is important in its bearing upon the decree in this record. It holds that while a decree entered by agreement or consent should more properly so recite, yet there is no rule making such recitation indispensable, for that while between the parties to the record nothing can be received to contradict the decree, yet there, as here, what was interpolated to support the fact of consent was not to be regarded as dehors the decree, but consistent with it. The statements in appellant’s brief that no hearing was had, proof offered or evidence heard, are consistent with the record and the decree found in it. In Knobloch v. Mueller, 123 Ill. 554, the court say: “Decrees so entered by consent cannot be reversed, set aside or impeached by 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.”
Nothing embraced within the exception is here apparent. The decree was agreed to in conference by the counsel for the respective parties and in virtue of their agreement and with their consent, and without any other action the chancellor, in virtue and faith of such surface appearances, ordered the decree to be entered.
In Krieger v. Krieger, 221 Ill. 479, the court say: “Parties who are competent to contract may agree to the rendition of a decree in respect to any rights which may be the subject of litigation. Such a decree is not in a strict legal sense a judicial sentence, but it is in the nature of a solemn contract, 5 Ency. of Plea. & Prac., 961, and it cannot be appealed from, nor can error be assigned upon it, for the reason that if there be error in it, the error is that of the parties and not of the court. The decree not being the judgment of the court, a rehearing cannot be allowed, and it cannot be set aside upon review for errors of law apparent on its face, or be impeached by such bill on account of additional evidence. It can only be impeached by an original bill in the nature of a bill of review. ’’ Cox v. Lynn, 138 Ill. 195; First Nat’l Bank v. Illinois Steel Co., 174 Ill. 140.
In the Krieger case, supra, while the court upheld the Circuit Court in vacating, a decree entered by consent at the term in which it was entered, such ruling was based upon a cause coming within the exception to the rule stated in the decisions,' viz.: the decree was procured by fraud. It also rested upon another fact and firm legal principle that during the term at which a decree is entered by operation of law it remains in the breast of the court and subject. during that term to its control, and may during such' time be vacated or amended on either the motion of the parties or in the exercise of the discretion of the court, as justice and right may require. Stahl v. Webster, 11 Ill. 511; Smith v. Vanderburg, 46 id. 44; Edwards v. Irons, 73 id. 583; Shanahan v. Stevens, 139 id. 428.
“There can be no error in a decree by consent. Consensus tollit errorem! There can be no injustice in a decree by consent. Volenti non fit injuria ” Lord Nottingham in Webb v. Webb, 3 Swanst., 658.
Upon the same principle any particular provision or portion of a decree entered by consent or agreement of „a party cannot be by such party assigned for error.
In Franck v. Brack, 4 Ill. App. 627, the parties consenting waived the statutory right to redeem in a foreclosure decree, and on seeking a review, assigning error in the decree as contrary to the statute, it was held the consent was a bar to review, and the writ of error sued out seeking such a review was unavailing.
Beach in his work on Equity Practice, vol. 2, sec. 795, states as a fundamental principle that decrees or judgments entered by consent are binding and conclusive, and not the subject of review or rehearing, modification or variation in any essential part, except for fraud. French v. Shotwell, 5 Johns Ch. 555; Finley v. Bk. of U. S., 11 Wheat. 304; Atkinson v. Hanks, 1 Cowen, 691; Leitch v. Cumpston, 4 Paige, 476; Morris v. Peyton, 29 W. Va. 201.
Had the parties here desired a review of the decree of the chancellor in an appellate tribunal, they should have either tried the cause in the usual way, or, if they could agree upon the facts, without resorting to proof, and were desirous of avoiding the labor involved in so doing, they should have embodied such facts, about which.they were in accord, in an agreed statement of them in writing, leaving the chancellor to apply the law to them. After proper presentation, the court might grant such relief by decree as the facts, under the law, in his judgment seemed appropriate. On a decree so procured, with a foundation of facts to sustain it, a dissatisfied party might prosecute an appeal and obtain our review of the record. This was not done. A new and unprecedented course was adopted, resulting, as we think, from a misconception by counsel of the legal effect of the mode adopted, and which we infer from the arguments of counsel, influenced them in consenting to a final decree which they inadvisedly seem to have assumed was reviewable. If such be the fact, counsel have misconceived the effect of their actions. The decree is plainly the result of their agreement and consent and rests upon naught else. The decree, thus promulgated, is binding upon the parties, and,- in the judgment of this court, is not a judicial finding, but the solemn compact of the parties and not reviewable. The decree of the Superior Court is therefore affirmed.
Affirmed.
