MacGillivray v. Owen

THE COURT.

This is an appeal from an order setting aside the default of the defendant and vacating a judgment entered upon such default.

The grounds of the defendants’ motion for such relief consisted of the showing made hy him that in the month of March, 1908, shortly after the commencement of the action, an oral stipulation had been entered into between himself and Stanton L. Carter, Esq., one of the attorneys for the plaintiff in the action, to the effect that it would not be necessary for said defendant to appear in the action, and that no judgment would be taken against him, and upon the further showing that for a period of more than six years thereafter, during which the defendant had made no appearance, relying upon such stipulation, no default was entered and no judgment taken against him, but that in the month of September, 1914, the action was dismissed against the other defendants therein, and default and judgment entered against this defendant, which he made this motion to have set aside immediately after his discovery of the fact and within a few days after the entry of the judgment.

Upon the hearing of the motion the affidavit of defendant with certain evidence was offered, strongly tending to prove the existence of such stipulation and of the defendant’s reliance thereon. It further appeared that Stanton L. Carter, Esq., had died in the meantime, and hence no affidavit could be presented from him denying the existence of said stipulation. The plaintiff did, however, present some evidence— mostly hearsay — having some tendency toward proving that such an oral stipulation had not been made; but in so far as the defendant’s affidavit positively asserted the existence of the stipulation, it was undenied, except upon information and belief.

[765]

The trial court found that such stipulation existed, and thereupon set aside the default and judgment taken and entered in contravention thereof.

We find no error in such ruling. While it is true, as the appellant asserts, that the courts of this state have early and often applied the rule that verbal stipulations as to pleadings and evidence will not ordinarily be regarded and enforced in the courts, except when admitted by the parties against whom they are invoked, the courts have been indisposed to give this otherwise general rule application to default judgments