108 So. 791 | La. | 1926
Cooper Sperrier contracted with plaintiff to construct a certain building according to certain plans and specifications for a certain compensation payable on certain terms, and the United States Fidelity Guaranty Company became the surety on the contractors' bond. The project was to be financed for account of plaintiff by the Security Building Loan Association, who held the funds.
When the work had progressed to a certain point (apparently almost to completion), work ceased on the building because of differences which had arisen between the contractor and the owner. With the merits of that controversy we are not presently concerned; suffice it to say that each party preferred claims against the other, and the matter was taken into court for adjustment.
"To minimize so far as possible the losses and permit the owner * * * to continue with the construction."
In which agreement it was provided that the owner should proceed to complete the building in a certain way (not pertinent at this time) and that the building association should furnish the funds therefor up to a certain sum, the balance (if any) to be furnished by the owner; that an accurate and itemized account should be kept of the cost of the various items of work done; and that, "after the completion of the work * * * and before thesubmission of the pending litigation to the court for decision," a copy of the agreement and the statement of costs provided for therein should be submitted to the court and filed in the record "the same as though regularly and duly offered and admitted in evidence," such information to be used by the court "to the extent it desires" in rendering judgment, "to the end that thejudgment, when rendered, shall pass upon and adjudicate all thedisputes, issues, and contentions of all the parties to thesuit"; the whole to be without admission that any party was at fault and without in any manner affecting the pending litigation or the judgment of the court "except as herein [therein] provided."
So that some time before February 12th the trial judge assigned the case "for argument"; i.e., fixed it for the final hearing on February 18th. On that day (February 12th) plaintiff laid before the court the agreement aforesaid and moved that in accordance therewith the hearing be postponed until the building should have been completed. The trial judge, however, declined to grant the continuance, and plaintiff applies to this court for relief.
Our learned brother would be quite correct in stating that litigants cannot tie the hands of the court by their agreements entered into *421 without its consent, if the statement be merely appliedgenerally, and as relating to agreements between litigants affecting, or attempting to affect, the powers, duties, and prerogatives of the court in its relations to other litigants than themselves and to the general public and the state (R.C.C. art. 11); but he is in error if the statement be applied to someparticular case, and as relating to the agreements between parties affecting only their own rights and obligations towards each other, so long as these agreements do not impinge upon or interfere with the court's general powers, duties, and prerogatives aforesaid. A plaintiff and defendant, sole parties to a litigation, may agree that plaintiff shall have judgment as prayed for, or that plaintiff's demand shall be rejected or dismissed, or that the case shall be continued (other than to a day fixed), or discontinued, etc., and the judge must not only carry out but even enforce that agreement, because that agreement then becomes the law of the case (R.C.C. arts. 1901, 1764). And, thus, as to all those phases of the suit which concern no one but the litigants themselves, and affect no rights but theirs, it is the litigant, not the judge, who is the Dominus Litis.
And in this particular case, the agreement entered into for the purpose on the one hand of minimizing damages, and, on the other *422 hand, of furnishing information sufficient to enable the court to terminate all the disputes between all the parties (with its broadening of the issues and possible curative effect on the petition at which the defendants have leveled their plea of no cause of action), gives no mere shadowy rights, to be insisted upon only in a purely litigious spirit, but very substantial rights of which the parties cannot be deprived except by due process of law.