Nathan v. Dierssen

SHAW, J.

This is an action to quiet title to a strip of land constituting a part of swamp-land surveys numbered 755 and 851, in Yolo County, California. After trial, judgment was given in favor of the plaintiff, and the defendant, within sixty days after its rendition, appealed therefrom, and makes the proceedings on the trial a part of the record by a bill of exceptions. A number of errors are assigned by the appellant, which we will consider in their order.

1. The case was tried before, judgment was given for the defendant, and on appeal to this court the judgment was reversed and the cause remanded for a new trial.

(Nathan

v.

Dierssen,

134 Cal. 282.) Some time prior to the former trial the plaintiff and defendant entered into a stipulation to the effect that one Herman Huber died seized and possessed of the land in question on February 3, 1889. The material part of the stipulation, so far as the question here raised is concerned, is as follows: “It is stipulated as follows: That the plaintiff and the defendant, George B. Dierssen, hereby admit, and will admit upon the trial of the above-entitled action,” that the property was vested as aforesaid. At the beginning of the trial now under review, the plaintiff offered in evidence this stipulation. The court at that time sustained an objection to the stipulation on the ground that it appeared to have been made merely for the purposes of the former trial, and was not binding upon the second trial. The trial was then continued for several weeks, and upon its being resumed the stipulation was again offered, and the court then changed its ruling and allowed the stipulation to be admitted in evidence against the defendant. There was no error in this ruling. There is nothing in the stipulation or in the circumstances under which it was made to show that its operation was intended to be limited to the first trial. The issues on the last trial were substantially the same as when the stipulation was made. In the absence of anything limiting its effect the stipulation was available to both parties and could be used at any subsequent trial. (20 Ency. of Plead. & Prac., 626.) It was within the discretion of the court to vacate its ruling that the stipulation might be withdrawn, and give the plaintiff leave to introduce it as evidence. There was no claim by defendant that any

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