McCann v. McLennan, 3 Neb. 25

McCann v. McLennan

3 Neb. 25 | Neb. | 1873

Gantt, J.

An application is now made by motion, to vacate and modify the judgment rendered in this case, at the last regular term of this court. No grounds are set forth in the motion showing reasons why it should be maintained by the court. It is simply a motion to vacate and modify *27the judgment, and whether such motion should or should not be dismissed upon motion to strike it from the files of the case, it is not necessary to now express any opinion.

The defendant disclaims filing his motion under the provisions of Chapter II, Title XVI, of the Civil Code, and hence this application is one at common law.

In Kemp and Buckey v. Cook and Ridgely, 18 Maryland, 131, the court says: “ The power of setting aside judgments upon motion is a common law power incident to courts of record, and exercised usually under restraints imposed by their own rules, and rarely after the term has passed,-during which the judgment was rendered.” And it is said that even in applications under the statute, “ when the court acts in the exfercise of its quasi equitable powers, it will properly consider all the facts and circumstances of the case, and require the party making the application to show he has acted in good faith, and with ordinary diligence.” "When the application is at common law, and made long after the term at which the judgment was rendered, the court will certainly act with great caution, and rarely exercise this authority; and it must be a strong case to call into exercise this authority. And furthermore, the court cannot be governed by its ideas of what is just and proper, for the grounds on which it exercises this power, are well settled by decisions almost amounting to definite and fixed rules.' But it is said the power is a discretionary one. It is such, but when this discretion of the court is spoken of, a sound legal discretion is meant, not an arbitrary sie volo. It is not a discretionary power in opposition to the settled principles of law and equity.

.But the ground upon which this motion is made is stated in defendant’s affidavit filed with the motion; and that'is, that the note upon which the action was brought, was executed by defendant to plaintiff upon a contract between the parties, in which plaintiff agreed he would *28not bid on a certain tract of land, at the time being: offered thereby enable minimum price íe contract was it was contrary ciple of law that at public sale by the United States, and the defendant to purchase the same at the fixed by law for United States Lands; and this is the first evidence of any adduced in court showing the ground upon which the action is founded. T made in violation of statutory law, and to public policy. It is a well settled prin courts will not enforce such contracts, and will not lend their aid to relieve either ' party connected with such transaction. Willard's Equity, 47. Thompson v. Davies, 13 John, 112. Forsythe v. The State, 6 Ohio, 21. Marshall v. Baltimore and Ohio Railroad, 16 Howard, 334. And if such contract is fully executed it will not be disturbed by the courts, and the money paid on such contract cannot be recovered back. Inhabitants of Worcester v. Eaton, 11 Mass., 375. But in respect to such contract the court will leave the parties where it finds them. Howell, Adm'r v. Fountain, 3 Kelly, (Georgia) 181. White v. Hunter, 3 Foster, 131.

In this application the moving party is pa/rticeps crirrdnis with the other party in the violation of statutory law, and the commission of an act contrary to public policy, as shown by his own affidavit; and he now invokes the aid of this court to relieve him from the liability which he has incurred by his own unlawful contract. As the rule of law seems well settled that money paid on such contracts cannot be recovered back, and that the courts will not lend their aid to either party, but will leave them where they find them, it seems very clear that the defendant has shown no ground to entitle him to relief in this court.

But the record shows an agreement of the parties submitting this cause, to the decision of the court upon the petition and answer. Although this agreement was made by the attorneys, yet, being made matter of record in the *29case in open court, preparatory to the trial and decision, it is binding upon the parties, and the court will enforce such agreement. Miller’s Appeal, 30 Penn., State, 478. It will not be interfered with simply because the party_has improvidently waived certain defenses. Bingham v. Board of Supervisors of Winona County, 6 Minn., 136. Ignorantia legis neminem exeusat is an old maxim with which attorneys are familiar, and certainly they are presumed to be careful in making agreements on the trial of causes in open court, and to fully comprehend the effect of such agreements. Hence, agreements relating to the conduct of a suit and its proceedings during the trial, in open court and entered upon the record, will conclude the parties. Staples v. Parker, 41 Barb., 648.

It is not alleged that any fraud was practiced on the defendant in obtaining the agreement on record. Indeed it seems to have 'been prepared by defendant’s counsel, and accepted by plaintiff’s; and as no extrinsic cause or reason is shown why this judgment should be set aside, in must upon well settled principles of law conclude the pai'ties.

The motion to vacate and modify the judgment is overruled.

Lake, Ch. J., and Maxwell, J., concur.

Motion overruled.