| Minn. | Mar 13, 1893
This action is brought by plaintiff, as administrator of the estate of Lena Weinberg, deceased, to recover the sum of $25,000, as upon an account stated between the defendant and the deceased. The defendant in his answer denies making any account stated, and sets up, by way of counterclaim, the receipt and misappropriation by the deceased of large sums of money belonging to the defendant, which he claims to be entitled to recover. While the action was pending, and on the 22d day of January, 1891, the parties entered into a stipulation, in the form of an agreement under seal, for a compromise and settlement of the mutual claims of the parties involved in the action, and stipulating the nature of the judgment to be entered therein, which was accordingly duly entered Janu
1. Upon the hearing of the renewed application, the defendant was met with the objection that it was made too late, on the ground that in the mean time more than one year had passed since the entry of the judgment, and more than one year since the discovery of the facts upon which the original application to reform the stipulation was based. The court overruled this objection, and entertained and granted the motion for the reason that the reversal of the former order, on the grounds stated in the opinion in this court, left the matter open for reconsideration in the district court, and that, upon being again brought up before the court upon the-order to show cause, by which the district court gave leave to make the motion, that court
Where in such cases the appellate court reverses an order, and gives express permission to renew the motion, the second application will be treated as a part of the original proceeding, if necessary to save the rights of the respondent in the appeal. Butler v. Mitchell, 17 Wis. 52" court="Wis." date_filed="1863-01-15" href="https://app.midpage.ai/document/butler-v-mitchell-6598941?utm_source=webapp" opinion_id="6598941">17 Wis. 52.
The original motion, the appeal, and the renewal should, as respects, the application of the statute, (1878 G. S. ch. 66, § 125,) be regarded as one proceeding; and the court will look at the substance, and will not be controlled by the mere form of the proceedings, (Howell v. Harrell, 71 N.C. 161" court="N.C." date_filed="1874-06-15" href="https://app.midpage.ai/document/howell-v-harrell-6689995?utm_source=webapp" opinion_id="6689995">71 N. C. 161;) that is to say, the mere omission by the appellate court to give formal leave to renew the motion is not fatal to-the right, when the case is remanded for further proceedings, and the court indicates that other or different relief was proper in the-case upon the facts disclosed by the record.
2. It is true that the relief now asked was not specifically prayed for in the original application; but the principal objection to the relief then sought Was that it was not broad enough, in that the compromise agreement or stipulation, if modified at all, should be modified as to both parties, and, if either was relieved from its obligations, both should be. The change suggested in the form of the relief was for the benefit of the plaintiff, and in his interest. We think, upon the case made, the court might, under the general prayer for relief, have gianted the relief now sought on the original motion,
3. It is contended that the agreement referred to was a solemn contract of the parties under seal, and beyond the authority of the court to set aside summarily upon motion, but that the matter should have been determined by suit in equity, upon issues formally framed. The mere form of the instrument sought to be set aside is not, however, controlling. It was a step or proceeding in the cause, and determined the form and amount of the judgment and the final disposition of the case.
The effect of the order in question here, as finally made, was to put the parties in statu quo, with leave to serve the amended answer. It left the parties free to proceed to a trial upon the merits of the controversy between them, but the proceeding was not a trial of the merits upon motion. It was in principle no different from the vacation or setting aside of any order or stipulation in the action on the ground of mistake or other equitable ground. We think the court did not transcend its power or discretion in the premises. Barry v. Mutual Life Ins. Co., 53 N. Y. 540; Ferris v. Crawford, 2 Denio, 595" court="N.Y. Sup. Ct." date_filed="1845-12-15" href="https://app.midpage.ai/document/ferris-v-crawford-5465227?utm_source=webapp" opinion_id="5465227">2 Denio, 595.
4. Leave to serve the proposed amended answer was not applied for on the original motion, but it necessarily followed as a part of the relief upon the last motion, in order to make the relief sought available. Such amendments may be made at any time, in the sound discretion of the court, while the action is pending. The one-year limitation has no application in such cases, but the application to serve an amended pleading must be disposed of under the circumstances existing when made.
5. Upon the merits of the motion to vacate the agreement, stipulation, and judgment, now under consideration, we think the case made by the defendant sufficient to support the decision and order made. The agreement was made, as the evidence- shows, in ignorance of the fact that the deceased had taken and concealed from •defendant the additional sums since discovered and now claimed by
6. It is, however, further suggested that this application should not have been granted because, since the execution of the agreement and entry of judgment, the decree for the final distribution and settlement of the estate of Lena Weinberg has been duly made and entered in the probate court. This decree was entered the next day after the discovery by the plaintiff of the sum of $12,900, in question, in bank bills, concealed in a piano stool. Three days later the defendant brought an action against the plaintiff to recover the possession of the same, claiming it as his property. By Laws 1889, ch. 16, § 113, (Probate Code,) the defendant, in an action brought against him by an administrator, may set off any claim he has against the deceased. And we think it was a proper exercise of its discretion by the district court to open the judgment upon good cause shown, and to relieve the defendant from the effect of it as an estoppel, and, secondly, to allow defendant to amend his answer as proposed, in order that he might protect his rights fully in the defense of the action; and we need not consider here what remedy would be available to him for the enforcement of an affirmative judgment against the plaintiff as administrator, in case one should be recovered; and the plaintiff could hardly be held responsible on his bond for not distributing assets to which the defendant establishes a valid claim, or which are applied, as the law permits, in satisfaction of a counterclaim in an action brought by plaintiff.
Order affirmed.
(Opinion published 55 N.W. 58" court="Minn." date_filed="1893-03-13" href="https://app.midpage.ai/document/gerdtzen-v-cockrell-7967805?utm_source=webapp" opinion_id="7967805">55 N. W. Rep. 58.)