Keys v. Warner
Synopsis
Stipulation for Entering Judgment.—A stipulation of the parties that the plaintiff take judgment for a sum named and costs, hut that execution he staid until the decision of a certain other case pending in another Court, and that if said other case is decided for the defendant for a certain reason, the judgment he set aside, otherwise an execution to issue, authorizes a judgment absolute in terms to be entered for the plaintiff, which will not be set aside if such other case is decided for the defendant, unless it is so decided for the reason given.
Setting Aside Submission of Order.—After a motion for an order has been argued and submitted, the Court may, at its discretion, set aside .the order of submission and allow more evidence to be introduced.
Waiver of Error.—If an erroneous order is made setting aside the submission of a motion and authorizing new evidence to be introduced, the party against whom the error is committed waives the same by availing himself of the permission to introduce new evidence.
Stipulation of Attorneys.—The Court cannot alter or vary the terms of a written stipulation made by attorneys, or relieve them from its obvious consequences.
By the Court: The judgment of the Court below purports to have been rendered in pursuance of the stipulation of the attorneys of the respective parties, and there can be no just pretense that the stipulation did not fully authorize the judgment entered.
Nor do we think the Court erred in vacating the order submitting the motion to set aside the Judgment and allowing further affidavits to .be filed. After a cause has been submitted to a Court for a judgment, it lies very much within its discretion whether the case may be reopened for the mere purpose of hearing further testimony. But, if there were error in vacating the order submitting the motion, that error was waived by the defendants when they availed themselves of the permission given to file an affidavit in their own behalf. There being no error in receiving the affidavits, there could, of course, be none in afterwards' considering them/ i
By the terms of the stipulation the judgment was to be set aside in case a certain certiorari case, then pending in this Court against the Supervisors of Marin County,, should be finally decided for the defendant, “ upon the ground that the highway mentioned therein is established.” The record shows that the certiorari case referred to was decided for the [63]defendant and the writ dismissed, but not upon the ground or for the reason named in the stipulation.
The parties having made their own stipulation, we cannot alter it or change its terms, or relieve the defendants from its obvious consequences.
Judgment and order affirmed.
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