Summary
finding a stipulation made in open court binding on the parties
Summary of this case from State v. JohnsonOpinion
March 11, 1955 —
April 5, 1955.
APPEAL from a judgment of the circuit court for Kenosha county: ALFRED L. DRURY, Circuit Judge. Affirmed.
For the appellant there was a brief by Urban J. Zievers of Kenosha, and Gold McCann of Milwaukee, and oral argument by Ray T. McCann.
For the respondent there was a brief by Vaudreuil Vaudreuil of Kenosha, attorneys, and Paul W. Kaiser of Waukegan, Illinois, of counsel, and oral argument by Leo E. Vaudreuil.
This action was commenced on June 13, 1952, to recover certain moneys claimed by the plaintiff to have been advanced to defendant. After issue was joined a pretrial conference was had at which the issues were limited by stipulation. There appears in the record the official reporter's certified transcript of proceedings had on October 1, 1953. It is a stipulation which recites that it is made in open court by the parties and their respective attorneys, sets forth the terms of settlement of the litigation, recites that compliance with its terms shall constitute a full and complete settlement of all issues in the action, and provides that upon compliance with its terms the action shall be dismissed.
Before the entry of judgment on the stipulation the plaintiff engaged other counsel and served notice of motion "for further hearing in the cause." The notice was accompanied by plaintiff's petition setting forth that he had not been fully consulted on the terms of either of the stipulations, that he did not consent or approve of either of them, that their contents are not his agreement, and that he is not satisfied with their terms, that his former attorney had entered into the stipulation without his full knowledge and consent, and that he was ignorant of his rights when he signed the complaint. He does not deny that he was present in court when the stipulation was made.
Pending hearing on plaintiff's motion, defendant served notice of motion for judgment in accordance with the latter stipulation. Both motions were heard on January 18, 1954.
Following the hearing and on January 27, 1954, the court made an order denying plaintiff's petition and ordering that judgment be entered in accordance with the terms of the stipulation of October 1, 1953. The order recites that the stipulation was duly entered into in court at a hearing at which plaintiff appeared personally and by his attorneys and that the defendant also appeared personally and by her attorneys. It is recited in the order that the stipulation was made in good faith in open court and in the presence of the court. It recites further that plaintiff has accepted the sum of $1,700, which had been deposited by defendant with the clerk of court and which, by the terms of the stipulation, was to be turned over to plaintiff.
On February 16, 1954, judgment was entered upon the order of January 27, 1954. Plaintiff appeals.
It is not claimed that the terms of the judgment vary from those of the stipulation. Nor is it denied that the stipulation was made in open court in the presence of the parties and their counsel. It was recorded in the reporter's minutes and was transcribed and made a part of the record in this case. It is contended that the stipulation is ineffective because it was not made in compliance with sec. 269.46(2), Stats., which provides as follows:
"(2) No agreement, stipulation, or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney."
Specifically, plaintiff urges that it does not appear that it was "entered in the minutes;" that the reporter's notes are not minutes. We have no statutory definition of the term, "minutes of the court." Bouvier defines it as "a memorandum of what takes place in court, made by authority of the court." It would certainly seem that a record made by the official court reporter is made by authority of the court. The binding effect of a stipulation made under similar circumstances was recognized in Baker L. T. Co. v. Bayfield County L. Co. 166 Wis. 601, 604, 166 N.W. 314, where the court said:
"That an oral stipulation made in open court during the course of a trial and taken down by the reporter and acted upon by the parties is a valid and binding stipulation, is established beyond doubt, and it is not within the rule that stipulations in actions to be binding must be in writing."
We hold that the stipulation is binding.
Plaintiff contends also that regardless of the question whether a stipulation, made as this one was, is effective to support a judgment, he has made a sufficient showing to entitle him to be relieved of its effect. He does not charge that his attorney or anyone else made any misrepresentation to him, or that he did not hear the stipulation dictated, or that any fraud or undue influence was exercised upon him, or that he was moved by any improper inducement whatever to stand by silently when the stipulation was made. The relief which he asked was within the discretion of the trial judge. We find no abuse of discretion.
Plaintiff contends that the judgment should be reversed because of the court's failure to make findings of fact and conclusions of law. Findings are necessary when there is to be a determination of facts. Catlin Powell Co. v. Schuppert, 130 Wis. 642, 110 N.W. 818. No such determination was necessary in this case. The stipulation provided all that was needed to support the judgment. Finkelstein v. Chicago N.W.R. Co. 217 Wis. 433, 259 N.W. 254.
By the Court. — Judgment affirmed.