43 Neb. 673 | Neb. | 1895
The cause of action stated in the petition filed in this case in the district court was for an amount alleged to be due defendants in error from plaintiffs in error for services rendered to them by defendants in error, as real estate agents or brokers, in effecting the sale, or an exchange, of some real estate. The answers were general denials. The case was called for trial, a jury impaneled, and trial had in. the absence of plaintiffs in error, and verdict returned! against them. They filed a motion for new trial, which, was overruled, and they have removed the case to this court for a review of the action of the trial court in refusing to set aside the judgment and grant them a new trial. The motion was as follows: “The defendants move the court to set aside the verdict and judgment in the above entitled cause, and in support thereof the affidavits of H. P. Stoddart, ¥m. E. Healey, L. H. Kent, and Dennis Cunningham, filed herein this 27th of June, 1892, are herewith submitted.” The motion is entirely insufficient, in that it fails to state or assign any ground for granting a new trial,
L. H. Kent, one of the plaintiffs in error, states, in substance, in his affidavit, that he was in the court room about 10 o’clock A. M. of June 23, and the case had not been reached for trial, and was not next on call; that he had a conversation with M. D. Hyde, attorney for defendants in error, in which it was agreed that the cause should not be tried during the absence of either, and if reached, and either one of them was present and the other not, the one present should inform the other. After making such agreement, as he had a very severe headache, he left the court room and went to his office and did not return to court until about 4 o’clock P. M. of the same day and there learned that the case had been tried without the appearance of any one on his side of the cause, or in his behalf. Here follows a statement of the defense which he claims to have, as to-all matters of the action alleged in the petition.
Dennis Cunningham, one of the defendants in the dis
H. P. Stoddart, Esq., one of the attorneys for plaintiffs in error, states in his affidavit that immediately after the cause was reinstated in the call for trial he entered into an agreement with Mr. Hyde, attorney for the opposite parties, that the cause should not be tried when either of them was absent, and if either ascertained when the case would be reached for trial and the other did not know it, or was absent, the one obtaining such knowledge, or being present, should inform the other, and that in violation of said agreement, Hyde being present when the case was called, tried it on behalf of his clients; that the affiant was only about two blocks away from the court room where the trial was held, at the time of the trial, and could very readily have been notified if Hyde had desired to fulfill his agreement.
Mr. Wm. E. Healey, one of the attorneys for plaintiffs in error, states that he was, immediately prior to the time <of the trial in this case, engaged in the trial of another case in another court in the city of Omaha, and did not reach the room where this Gase was being tried until the ■judge had almost closed his instructions to the jury, “and then and there his honor Judge Keysor informed deponent that any matters on the part of defendants might be presented on a motion to set aside the verdict. After deponent having informed said judge that although he, deponent, had no testimony in the court room at the moment, he could procure the same very shortly, said judge stating that the jury could not then be held for the same.”
Neither Kent nor Stoddart claims that the agreement
In behalf of the other parties to the record, Mr. Hyde makes affidavit, and states therein, that this case was regularly reached and called for trial, and when called, the plaintiffs in it being present and ready, were directed by the court to proceed with the trial. That he called the attention of the judge to the fact that the opposite parties were not present, or represented by counsel, and the judge-replied that he had told Mr. Kent, one of the defendants in that court, and an attorney, that morning that the'case might be reached at any time, and they should watch it and be ready to try it when called, and further said that the trial might proceed; that on the day the case was reinstated on the call it was placed at the foot with a large number of cases before it; “that, as affiant and said Stoddart were leaving the court house, affiant remarked to him that he did not think said case would be reached for trial that week, but that if either learned that it was likely to •be reached that week he might let the other know; that said Stoddart asked affiant if he had a telephone; affiant replied no, but that if he telephoned Williams, one of the plaintiffs, it would reach affiant, and affiant alleges that is the only conversation or agreement he had with said Stod? dart in regard to said trial; and this affiant denies that he ever requested said Stoddart to enter into an agreement that they would let each other know as to the time when said cause would be reached for trial, or that said cause would not be tried in the absence of said Stoddart, and denies that said Stoddart relied upon affiant to inform him as to when said case would be reached, except as affiant might learn that it would' be reached that week, contrary to their expectations. Affiant further says said case was not reached during said week, and was not called for trial till Thursday, June 23, of the following week; that dur
Mr. Williams, one of the defendants in error, states as follows: “That about the first day of June, 1892, affiant was informed by his attorney, M. D. Plyde, that his case was placed on call; that he, the said Hyde, would probably Avant affiant to testify in said case at any time; that affiant was put to a great deal of inconvenience on account of time of said trial being unknown to him, and that for
Referring to the alleged agreement between Kent and Hyde, and also the one between Stoddart and Hyde, as a general rule courts do not feel called upon to, and will not, enforce stipulations or agreements regarding cases made out of court; but however this may be, the evidence as to the existence of each of these agreements was conflicting, and the question of their existence or non-existence seems to have been resolved by the trial court in favor of the
Affirmed.