Borkheim v. North British & Mercantile Insurance Co.
Before: Sanderson
Synopsis
Practice.—If an appeal be taken from an order on a motion founded upon affidavits and other documents, they should be each endorsed by the Judge as having been used at the hearing of the motion.
Stipulations not Binding.—A stipulation not in writing and filed with the Clerk, nor entered in the minutes of the Court at the time it was made, is not binding upon the parties, and cannot be enforced by the Court.
Idem.—B. had. several actions against different parties turning upon the same issues, and prosecuted and defended by the same attorneys, respectively. Counsel, with consent of B., stipulated, verbally, in open Court, that but one case should be tried, and the others should abide the result; but the stipulation was not reduced to writing and filed with the clerk, nor entered in the minutes of the Court. Held, that the stipulation was void, and could not be afterwards enforced by a nunc pro tunc order, directing it to be entered in the minutes of the Court.
. Appbabance—Pbesumption Abising Thebefbom.—If counsel appears to a motion, the presumption is that he appeared to oppose, and not to consent to the order sought by the motion.
Sanderson, J., delivered the opinion of the Court: The case shows that the plaintiff had brought separate actions against several insurance companies, to recover losses [626]caused by the same fire, and that the counsel and the issues in the several actions were the same. That one of them being on trial, it was verbally agreed in open Court between counsel (with the consent of the plaintiff—expressed only to his counsel, however), and so stated to the Court, that the other cases should abide the result of the one on trial; that this occurred on the 17th of November, but the agreement was not filed with the clerk" nor entered in the minutes of the Court, and was not so entered until the 11th of December following, at which time it was so entered upon the motion of counsel for the defendant, the plaintiff appearing to the motion by the same counsel who had made the agreement on the 17th of November, but not assenting to the entry. The plaintiff having been defeated in the action which was on trial on the 17th of November, a judgment against him was thereupon entered in this case also.
Afterwards, on the 2d of January following, the plaintiff having retained other counsel for that purpose, proceeding under the 68th Section of the Code, moved the Court to set aside the judgment upon an affidavit showing the foregoing facts, and in addition, that the plaintiff did not fully comprehend the legal effect of the agreement to which he was asked if he would consent, by his counsel, and that he gave his assent without fully understanding or comprehending that he was thereby stipulating away his right to a trial in this and the other cases, and that, after he came to understand it, and before the agreement was entered in the minutes, he informed counsel for the defendant that he was not satisfied with the agreement; and, also, instructed his own counsel to make no further stipulations in relation to this and the other actions; and that thereupon his counsel had informed him that he would act no further in said actions.
The motion to set aside the judgment was denied, and thereupon the plaintiff appealed from both the judgment and the order denying his motion.
On the part of the defendant, it is claimed that the appeal from the order cannot be entertained, for technical reasons affecting the character and authenticity of the transcript upon which it has been presented; but we do not find it [627]
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