2 Idaho 13 | Idaho | 1881
Tbe plaintiff filed bis complaint in this action on tbe third day of October, 1879. Summons was issued on the same day, but personal service was never effected. An attempt at service was made by publication on the twenty-seventh day of April, 1880. The following stipulation was entered, of record in the case and filed:
“In the District Court of the Second Judicial District, in and for Idaho Territory, Owyhee County.
“It is stipulated by and between the parties hereto that in the item of the complaint containing the account of Timothy Warren against the defendant, be enlarged to the amount of $677, on account of a failure of certain credits allowed in the complaint, and that the whole judgment be enlarged to embrace said sum. WM. B. KNOTT.
“April 27, 1880.”
On the same day judgment was entered in compliance with the prayer of the complaint and that stipulation on file for $4,291.89 and costs and disbursements. The said stipulation was .the only appearance of the defendant in the ease. The case comes to this court on an appeal from the judgment, and the record consists of the judgment-roll alone. The appeal seeks to reverse the judgment on the following grounds: 1. Because the record shows that the defendant was a nonresident, and does not show sufficient service of the summons to give the court jurisdiction of the person of defendant; 2. That there was no waiver of service of the summons; 3. That the paper appearing in the transcript marked “Stipulation for Judgment ” was not an appearance on the part of the defendant; 4. That the record does not show that said stipulation was signed by defendant, and that proof of such signature should appear in the - judgment-roll.
The first point is a question of great importance, involving the validity of service of summons by publication, much discussed in later decisions in federal and state courts.
The judgment of the court, however, is based in this case on the stipulation for judgment, and it is not, therefore, necessary to consider the first point. The paper marked “Stipulation for Judgment” properly forms no part of the judgment-roll, and under former decisions of this court would have been stricken out on motion, had such a motion been made. But as it is made a part of the transcript, and no objection being made to it, and the attorneys of the respective parties having given prominence to it in the argument, the court is of the opinion that it should be considered as a part of the record by consent of parties. This paper is entitled and filed as other papers in the action. Appellant claims that it has reference to but one specified item in the complaint. But in direct terms it refers to the whole judgment. In terms, it stipulates that that item be enlarged to $600, and that the whole judgment be enlarged to include that amount. The whole judgment, by reasonable construction, is the judgment asked for in the complaint. The court is of the opinion that this writing, in terms, consents, at least, that the judgment entered according to the prayer of the complaint be enlarged by $600. If advantage was taken of defendant in entering judgment too soon, or contrary to the terms of the stipulation, the defendant might have had it corrected in the court below under section 68 of the Code of Civil Procedure. The judgment recites that it was entered according to the prayer of the complaint and the stipulation on file. Even without reference to the terms of the stipulation, from the terms of the judgment we presume that the truth of the recitals was established by competent evidence to the satisfaction of the court, but the evidence should form no part of the judgment-roll.
The judgment is affirmed.
