No. 16,550 | Ind. | Nov 28, 1892
This suit was brought by Sands and Peirce, trustees, in the Marion Superior Court, to enforce the security of a first mortgage, executed in 1875, by the Indianapolis, Decatur & Springfield Railway Company — a consolidated corporation, existing under the laws of Indiana and Illinois — to Emott and Crane, trustees. Emott died and Sands was duly appointed his successor as trustee, and
' Besides the original grantor in the trust deed, the Indianapolis, Decatur & Western Railway Company was made defendant as the holder of the legal title to the mortgaged property. The Farmers’ Loan and Trust Company, and Noble C. Butler, trustees in certain junior mortgages, were also made defendants, as well as some other parties. A final decree was rendered in favor of the appellees; the nature of the decree, we need not here mention. The Indianapolis, Decatur & Western Railway Company took a separate appeal to the general term of the Marion Superior Court, as did the Farmers’ Loan and Trust Company and Noble C. Butler, trustees. The Superior Court in general term affirmed the judgment of the court in special term, and separate appeals were prayed by the Indianapolis, Decatur & Western Railway Company, and the Farmers’ Loan and Trust Company and Butler, trustees, and each assign errors separately, alleging that there is error in the ruling of the court at general term in affirming the judgment of the court at special term.
In the consideration of the case on this appeal, we are met at the threshold with the proposition that the decree in the case was entered by agreement and consent, at least in so far as appellant, the Indianapolis, Decatur & Western Railway Company, is concerned, and so far as the other appellants are concerned, they consented to the form, if not to the substance, of the decree; and it is urged on the part of the appellees that, such being the fact, the judgment must be affirmed without considering the merits of the case, while the counsel for appellants contend that the judgment is not a judgment by consent or agreement of the parties, and that even conceding the judgment to have been rendered by agreement and consent, the consent could not augment the jurisdiction of the court, or author
“It is hereby stipulated and agreed between the undersigned parties hereto, by their respective attorneys, that judgment shall be rendered herein in favor of the above-named plaintiffs, upon the 23d day of June, 1891; and it is further stipulated and agreed by and between the said parties, as above, that the form of the decree to be entered in pursuance of the first clause of this stipulation shall he and is as annexed hereto; and it is further stipulated and agreed that such change, if any, as this court shall see fit to make in the form of the annexed decree, on the application of R. L. Ashhurst, trustee, or any other parties not signing this stipulation, shall he made without prejudice to this stipulation, which shall stand as to the decree thus altered against all parties signing this stipulation.”
This agreement is dated and signed Eebruary 26, 1891. As it appears, the agreement was signed on the 26th day of Eebruary, and it was stipulated therein that the judgment should be rendered on the 23d day of June, 1891.
The record shows that on the 23d day of June, 1891, the day named in the agreement for the rendition of the judgment, the agreement and the decree were entered of record; and it nowhere appears that the decree, as entered,
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 on its merits when a consent decree is entered. It is a rule too well settled to require the citation of authority, that, if a pai’ty induces a court to make a ruling on the trial of a cause admitting incompetent evidence, he can not be heard to complain if the court adheres to the same ruling, and admits incompetent evidence in behalf of his adversary; that the erroneous ruling being made at his instance, he will be bound by the application of the same rule throughout the case, and this court will not reverse the judgment, though the ruling be erroneous. The investigation goes only far enough to ascertain that'the ruling was made at the instance of the complaining party.
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
These rulings are grounded in principle. They are consistent with our practice requiring exceptions to he taken to a ruling at the time. A party can not, 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 but fair to the court, and but just to the adverse party, to require a party contesting a case to object to a ruling made against him at the time, or withhold his ■consent to the rendition of a judgment, if he desires to question its validity, and is unjust and unfair to' hold that a party may induce and consent to a ruling or a judgment, and then secure a reversal on account of that being done which he requested, or joined in requesting, should be done.
The presumption is that the court would have rendered a legal and valid judgment within the issues in the ease; but here is a case presented where it is shown that the court yielded to the request of the parties and rendered such a judgment in manner and form as the parties agreed to, and now one of them is asking to be relieved from an error which it made in its agreement and induced the court to acquiesce in.
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. Fletcher v. Holmes, 25 Ind. 458" court="Ind." date_filed="1865-11-15" href="https://app.midpage.ai/document/fletcher-v-holmes-7037050?utm_source=webapp" opinion_id="7037050">25 Ind. 458.
"When a judgment is rendered by agreement, it is immaterial to determine on appeal the question 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 Pacific R. R. Co. v. Ketchum, 101 U.S. 289" court="SCOTUS" date_filed="1880-03-22" href="https://app.midpage.ai/document/pacific-railroad-v-ketchum-90127?utm_source=webapp" opinion_id="90127">101 U. S. 289 (295), the court holds that an appeal will lie as a matter of right under the statute, and thus says:
“ If, when the case gets here, it appears that the decree appealed from was assented to by the appellant, we can not consider any errors that may be assigned which were in law waived by the consent, but we must still receive and decide the case.”
In Moblock v. Mueller, 123 Ill. 554" court="Ill." date_filed="1888-01-20" href="https://app.midpage.ai/document/knobloch-v-mueller-6963600?utm_source=webapp" opinion_id="6963600">123 Ill. 554-565, the court says: “ Decrees of courts of clemency, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their 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 can not 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 further said: “ It is the general doctrine that such decree is not reversible upon appeal or writ of error, or bill of review for error.”
The court in this case undoubtedly had jurisdiction of the parties and the subject-matter, at least in so far as it related to the portion of the railroad property situate in Indiana, and might have rendered some valid judgment, and, if it be conceded that it is a fact that the judgment rendered is broader, and to some extent without the limits of
It matters not whether the evidence in the record supports the finding, for the parties have supplied and waived
We think that the Farmers’ Loan and Trust Company and Butler, trustees, occupy the same relation to this record as does the other appellant. Instead of signing the written agreement that the decree should be entered in the manner the others signed it at the close of' the agreement, the bill of exceptions — made a part of the record at their request — presenting the ruling on the motion to modify the decree, shows that on the 26th day of February, 1891, the cause was submitted to Ihe court for trial, pending which, at the conclusion of the evidence, a form of decree was prepared to he entered therein by consent of plaintiffs’ counsel, and a stipulation was entered into in writing, between the plaintiff and the counsel for certain defendants, by whom the same was signed; which said decree, with said stipulation attached thereto, was submitted, hy counsel for plaintiff, to Winter & Elam, who appeai'ed as counsel in the cause, and who endorsed on said decree the following : “ O. K.,” “ Winter & Elam.” Said decree, with said endorsement and stipulation, was thereupon placed in the possession of the court, which, pursuant to said stipulation, continued said cause under advisement until the 23d day of June, 1891, being the twentieth judicial day of the June Term, 1891, of the court, when the court announced its finding in said cause, as the same is particularly set out in said decree, and that it would enter said decree as the judgment and decree of the court in said cause. Then followed the filing of the motion to modify the judgment.
The record shows that Winter & Elam were the attorneys who filed the answer for, and were representing, these appellants in said cause iu the Superior Court.
Thus by the record it is as clearly shown, as it well can he, that these appellants, hy their attorneys, agreed to the rendition of the judgment and entering of the decree as entered. The agreement and the decree were drawn up and
The abbreviations “0. K.” have a well-defined meaning, and signifies “ all right,” “ correct.” See the Century Dictionary. The connection in which it was used must be taken into consideration. In this ease a trial was in progress, and when the evidence was concluded, an endeavor was made between the counsel in the case, acting for their respective clients, to enter into an agreement in regard to the final judgment that should be entered by the court, and an agreement was drafted, together with a final decree to be entered. It was signed by some of the parties, and the attorneys for these appellees indorsed it “ O. K.,” and signed their names, and it was handed to the judge. As it seems to us, but one inference could be drawn, and that is that the decree as drafted to be entered was all right, and they were giving their consent to the entry of the decree as prepared, and the court had the right to so regard it and order the decree entered at the date agreed upon, which it did. Taking the view of the case which we do, the judgment must be affirmed without considering the merits of the case. If the judgment entered by such agreement was entirely extra-judicial, and beyond the jurisdiction of the court entering it, so that it would be absolutely void, it is possible this court should intervene and set it aside; and, yet, it would seem — even in such a case, when a
The conclusion we have reached leads to an affirmance of the judgment.
Judgment affirmed, with costs.