William F. Dolan & Co. v. Stone

65 P. 641 | Kan. | 1901

The opinion of the court was delivered by

Ellis, J. :

The contention of counsel for plaintiffs in error that the court erred because it enforced an oral agreement of counsel in violation of its rule is unavailing. The rule referred to is as follows :

“Stipulations and admissions of counsel will not be enforced unless made in writing, or in open court in the presence of the stenographer and by him taken as a part of the record of the case.”

Such rule is valid. (Jones v. Menefee, 28 Kan. 437.) Rules of a district court are made in pursuance of the inherent power vested in that tribunal to aid in administering, and not in thwarting, justice. If to invoke the assistance of a rule under a given state of facts would be to accomplish a wrong, a court may well decline to apply it, and in such case the power that made the rule may suspend its operation. That a court ought not to do so', except for good cause, is evident ; that oral stipulations affecting the substantial rights of litigants should not be -made by the counsel for the respective parties is undenied; still, where an undue advantage is gained, and especially where a judgment is rendered against a party nowise liable for the payment of a debt, in consequence of reliance being placed on such an agreement as the court below by its general finding must be presumed to have held had been made in this case, we think that the court, in the exercise of a sound discretion, in a direct proceeding brought for that purpose, may, in furtherance of justice, set aside a judgment thus obtained and permit a party who is without personal fault to defend upon the merits. Where, under such circumstances and for such laudable purpose, a district court elects to ignore its rules, this court will not reverse a judgment in-order to enforce them.

It is evident that, by the special finding quoted in the statement, the court designed to hold that, while Mr. Eoberts had not intended to take advantage or mislead his adversary, his acts did in fact amount to legal or constructive fraud. We are satisfied’ from a critical examination of the record that both counsel acted in good faith, and that the decision of the court below was right.

The judgment of the district court is affirmed.

Smith, Cunningham, JJ., concurring.