Hibernia Savings Etc. Soc. v. Waymire

ANGELLOTTI, J.

This a motion to dismiss an appeal taken by defendant on August 19,1907, from a judgment made and entered against him on May 7, 1907, on the ground that such judgment was rendered and entered in pursuance of an express written stipulation of the parties, which stipulation contained an express waiver by defendant of his right to appeal.

The action was one for the recovery of the. possession of certain real property, and costs of suit. The prayer of the complaint was: “Wherefore, plaintiff demands judgment against defendant for the immediate possession of said real property and the whole thereof, and for costs of suit.” The record before us shows a written stipulation dated and filed

[287]

in the cause March 12, 1907, signed by the attorney for the plaintiff and by the defendant in

propria persona,

providing that the cause be continued to March 22, 1907, at ten o’clock A. M., and that at said time “judgment may be rendered and entered in favor of plaintiff and against defendant as in plaintiff’s complaint prayed for, and it is further stipulated that defendant may have thirty days’ stay of execution of the judgment so rendered.” The stipulation contained a further provision as follows: “Defendant hereby waives his right to appeal from such judgment.” The record further shows that on March 22, 1907, the court filed its decision in writing, expressly based on said stipulation, directing judgment for plaintiff for the immediate possession of said property and costs, a stay of execution for thirty days being granted, and that on May 7, 1907, the judgment appealed from, which is in precise accord with the terms of the stipulation, was entered by the clerk pursuant to such written decision. The judgment as entered by the clerk contains certain recitals to the effect that the cause was tried by the court, that witnesses were sworn and examined, and that the evidence being closed, the cause was submitted to the court for consideration and decision, but it fully appears from the other recitals that the judgment was entered solely in pursuance of the written decision and order filed on March 22, 1907, which decision and order are expressly referred to and made the basis of the judgment.