Southern Colonization Co. v. Howard Cole & Co.
201 N.W. 817
Wis.
1925
Check Treatment

Lead Opinion

Rosenberry, J.

Sec. 2832, Stats., pursuant to the terms of which the trial court acted, provides that—

“The court or a judge may likewise in discretion and upon such terms as may he just, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him, through his mistake, inadvertence, surprise or excusable neglect.”

On behalf of the plaintiff it is contended (1) that the writing in question is not a mere stipulation but a binding contract, and that therefore the court had no power to set it aside under the provisions of sec. 2832; (2) that if the court had power, there is no equitable ground for the exercise of that power by the court in this case; and (3) that the court could not set aside the writing in the absence of other parties to the agreement not parties to the action.

The defendant contends that the order setting aside the stipulation is not an appealable order and that the case is ruled by Walters v. Eakins, 172 Wis. 626, 179 N. W. 781. Upon this proposition the plaintiff contends that the agreement in this case was not a mere stipulation but a binding contract, and that the order in effect grants a new trial and *476is therefore appealable under sub. (3) of sec. 3069, which authorizes an appeal from an order granting a new trial.

The nature of stipulations and their effect have been considered in Illinois S. Co. v. Warras, 141 Wis. 119, 123 N. W. 656, and in cases there cited. A stipulation is a .contract, but it is a contract made in the course of judicial proceedings, and a contract so made has certain incidents that do not belong to contracts made outside of judicial proceedings. In Illinois S. Co. v. Warras, supra, it was held that stipulations were of two classes: first, those relating to merely procedural matters, and second, those which have all the essential characteristics of a mutual contract. The stipulation in this case is no doubt of the second class. It is an agreement between the parties that upon the doing of certain things judgment shall be entered for or against one or the other of the parties in accordance with the facts as they may be made to appear at a future time. If the defendant performed its contract to convey, then judgment was to be entered dismissing the action. If the defendant failed to perform its contract to convey, then judgment was to be entered for the plaintiff for damages in the sum of $20,000. There had been no trial of the action. Sec. 2842 provides: “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” It is universally held that a motion for a new trial cannot be entertained until after a verdict of the jury or final determination by a court or a referee. See 2 Bl. Comm. 387; 20 Ruling Case Law, 217; cases cited under “New Trial,” 5 Words and Phrases.

The court having made no examination of the issues, but the trial having been suspended by a stipulation of the parties and the jury discharged, there has been no trial, the trial having in fact been abandoned. Upon that state of the record there could be no motion for a new trial; and while the language of the order is that “the stipulation is set aside *477and a new trial of this action on the merits is granted,” this is an inaccurate but common use of the term “new trial.” There is certainly nothing to indicate that it was used in sec. 3069 as applicable to any such situation as presented by the facts in this case. While the matter was not dealt with at length, it wag. distinctly ruled in Walters v. Eakins, supra, that an order setting aside a stipulation for a judgment did not grant a new trial. While the question was not there fully presented or argued, a re-examination of the authorities fully sustains the proposition there stated.

The order not being an appealable order, the case is not before us upon the merits and the appeal must be dismissed.

By the Court. — It is so ordered.





Dissenting Opinion

Owen, J.

(dissenting). A narrow and technical construction of a statute has been indulged' to work a result that is in striking contrast with recent legislative and judicial policy to broaden and rationalize procedure to the end that a consideration of the merits of the case shall not be delayed out of regard for technical considerations. I have no fault to find with the general definition of the term “trial” contained in the opinion. I do feel, however, that the application of that general definition to the term “new trial” in sub. (3) of sec. 3069, Stats., is utterly inconsistent with apparent legislative purpose and imposes upon the parties to this action an unwarranted hardship which brings judicial procedure into most deserved disrepute.

In this action a trial was begun. If it had resulted in a verdict of a jury the action of the court in setting aside that verdict and granting a new trial would have been appeal-able. While it did not result in a verdict of a jury, it did result in a stipulation upon which the court was just as fully authorized to grant judgment as it would have been upon a verdict of a jury. The court sets aside that stipulation and orders a new trial. The only question involved in the case *478is whether the court was justified in setting aside that stipulation. Under the decision, that question cannot be decided by this court until after another trial.

The reason prompting the legislature to authorize an appeal from an order granting a new trial is exactly the same in this case that it would have been had the order of the court set aside the verdict of a jury. It is to prevent the burdens, delays, and expense incident to a new trial when an appeal from the order granting the new trial may result in a settlement of the entire controversy.

A cursory investigation reveals that the term “trial” or “new trial” is not always accorded a hard-and-fast meaning when the same is found in statutes. Thus in Gilroy v. Badger, 28 Misc. 143, 58 N. Y. Supp. 1106, it appeared that a case was placed on the short-cause calendar, and, after the trial had proceeded for an hour without being concluded, was sent back to the general calendar and tried in regular course. It was held that there were two trials of the case within the meaning of a statute relating to costs.

In Taft v. Little, 78 App. Div. 74, 79 N. Y. Supp. 507, a witness testified in a hearing before a referee. The referee died before submission of the cause. Prior to another- trial before another referee the witness died. It was held that the hearing before the first referee constituted a trial within the meaning of a statute providing that where a witness has died since the trial of an action his testimony may be given in evidence at a new trial.

In State v. Gardner, 8 Ind. App. 440, 35 N. E. 915, it appeared that the defendant in a criminal prosecution pleaded not guilty, but consented to a finding of guilty on the part of the court without any evidence having been offered against him. It was held that this constituted a trial within the meaning of a statute relating to appeals.

It will be seen that in these cases the general definition of the term “trial” was ignored to give effect to an apparent legislative purpose. A similar construction might well be *479indulged here to carry out what seems to me to be a plain legislative intent, to accomplish justice and to avoid inevitable reproach to judicial procedure.

I think the decision in Walters v. Eakins, 172 Wis. 626, 179 N. W. 781, was ill-advised and that the court might well embrace this opportunity to lay down a rule in keeping with the much vaunted policy of this state with reference to judicial procedure.

I therefore dissent.