Board of Commissioners (No. 2) v. Younger

By the Court, Sanderson, C. J. This is an appeal from an order dismissing the action made under the following circumstances:

The action was tried and a final judgment entered therein in favor of the plaintiffs, on the 20th of January, 1864. On the 10th day of January, 1865, the motion of the defendant for a new trial was granted. On the 19th of January, 1865, [148]counsel for the defendant filed in Court a stipulation, signed by the Commissioners of the Funded Debt of San José in person, and not by their attorney of record, to the effect that the matters in controversy had been settled, and that the action might be dismissed, and also a receipt, signed by the Treasurer of the Board, in full payment for the land, to set aside the conveyance of which, on the ground of fraud, this action was brought, and thereupon moved the Court to dismiss the action, grounding his motion upon the one hundred and forty-eighth section of the Practice Act, which provides, among other things, that an action may be dismissed by either party, upon the written consent of the other. This motion was resisted by the attorney of record of the plaintiffs, and a counter motion was made by him to strike the stipulation from the files of the Court. Both motions were heard together upon affidavits presented by both parties, and the motion of the defendant finally prevailed.

It appears from the affidavits that the action was commenced and prosecuted for the purpose of reforming a deed of certain land held by the plaintiffs, in their capacity of trustees, to the defendant, on the ground of fraud, under an agreement with one Gish (who claimed that under the rules and regulations of the Board of Commissioners touching the sale of lands so held by them, he was entitled over the defendant to become the purchaser of the land so sold and conveyed to him,) to the effect that if a reconveyance could be obtained from the defendant, either voluntarily or by a resort to the Courts, they would thereafter convey to him, he agreeing to pay all costs and expenses, including the fees of counsel. And it further appears that Gish employed counsel, and up to the time the order in question was made, prosecuted the case in all respects at his own expense, and that neither he nor the attorney of record so employed by him ever assented to the stipulation dismissing the action signed by the plaintiffs.

It also appears that the Commissioners settled the case and authorized its dismissal under a misapprehension as to its true [149]