Schott v. Enander , 73 N.D. 352 ( 1944 )

I concur in the result but I do not agree with the law laid down regarding stipulations. The stipulation in 20 N.D. 197 was one which in effect resulted in an agreed case, upon which the matter involved was submitted. Such a stipulation is in the nature of a contract and the party may not be relieved therefrom without good cause shown to the court. Such rule has sound support. See Thayer v. Federal L. Ins. Co. 217 Wis. 282, 258 N.W. 849, 850.

But as shown in this case cited, "`Stipulations' are of two kinds: First, those which are mere admissions of fact, merely relieving party from inconvenience of making proof; and, second, those having all characteristics as concessions of some rights as consideration for those secured, and these stipulations are entitled to all sanctity of ordinary contract." This second class is the class involved in our decision, 20 N.D. 197, 126 N.W. 233. G:wpfile.set

The stipulation involved in the case at bar is of the first class. It dealt merely with the admission of one of the so-called facts in the trial of the case on the first hearing in the trial court. Such stipulation has no binding effect when the case comes before the trial court in another trial.

This case was before us on appeal. We sent it back for the taking of further testimony and our order was so broad that in effect it amounted to a new trial in which the parties could introduce any testimony they saw fit and could amend their pleadings in such respects as were found necessary. To all practical purposes, it was the same as if this court had reversed the lower court and granted a new trial. In that situation it would have been an exact duplicate of Paine v. Chicago N.W.R. Co. 217 Wis. 601, 258 N.W. 846, 848, where it is held that such a stipulation had no "binding effect" except in the hearing in which the stipulation was made and it was not necessary to apply to the court to be relieved from it.

The rule laid down in the present case would make any type of a stipulation binding upon a party unless he applied to the court to be relieved therefrom and his application was granted — even a case where it was stipulated that if a witness were present he would testify a certain way and on the next hearing the witness was present ready to testify to the contrary. Why lay down such a rule and subject a party to the hazard of the discretion of the trial court? The record involved was offered in evidence. A ruling of the trial court on the objection to the record was unnecessary and quite evidently the trial court considered it.