Summary
In Pasternak, supra, where the plaintiff brought an action for possession of a farm which was occupied by the defendants, the action was settled with a stipulation.
Summary of this case from Burmeister v. VondrachekOpinion
May 3, 1961 —
June 6, 1961.
APPEAL from an order of the circuit court for Marinette county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellants there were briefs and oral argument by Ken Traeger of Gresham.
For the respondent there was a brief and oral argument by E. B. Martineau of Marinette.
Motion to set aside a judgment entered upon stipulation.
On September 16, 1958, Michelene Pasternak brought action against Walter, Stanley, and Paulina Pasternak seeking possession of the Pasternak farm, damages for withholding of possession, damages for waste, and injury to the premises, accounting, and injunction against removal of timber and personal property.
Walter Pasternak is Michelene Pasternak's divorced husband. Stanley is Walter's father. Paulina is Stanley's wife and Walter's stepmother. Michelene alleged that she had title to the farm in fee simple subject to a life estate of Stanley and Paulina in part of it. At the time her complaint was filed, the court ordered defendants to show cause why a temporary injunction should not be issued.
A hearing set for September 22d was adjourned to September 29th, and on the latter date a settlement was apparently reached and a stipulation dictated by the judge in the presence of the parties, the attorney for Michelene, and the attorney for Walter who was referred to in the stipulation as attorney for all three defendants. The stipulation recited that it was made in open court, was attested as correct by the signature of the official reporter, and was filed with the clerk October 3d. At the foot of the stipulation appeared an order "By the Court" dismissing the action against all defendants upon compliance with the stipulation.
On January 5, 1959, Michelene's attorney presented an affidavit that she had complied with the stipulation, but defendants had not. In accordance with a provision of the stipulation which would apply under those circumstances, judgment was entered that Michelene recover $5,000 and costs from Stanley. The judgment was personally served on Stanley January 14th.
On April 22d, Stanley and Paulina moved that the judgment be set aside, alleging that Attorney Robert Murphy, who represented Waiter in the matter, had not represented them; that the stipulation was not made in open court, and that they did not understand that the stipulation imposed any obligation on Stanley.
After hearing the motion on May 18th, the court orally denied it. A written order of denial was entered December 4, 1959. On February 29, 1960, Stanley and Paulina Pasternak appealed, although the record was not filed in this court until January 27, 1961.
The material transactions between the parties as gleaned from apparently undisputed statements in the brief as well as the record may be summarized as follows:
Michelene and Walter were married in 1952. In April, 1956, Stanley and Paulina deeded their farm to Walter and Michelene, reserving a life estate in the portion where the buildings were located. The deed provided that the farm could not be sold by Walter and Michelene while Stanley and Paulina were alive without their consent; that Stanley and Paulina would keep the buildings in repair; that possession of the part of the premises not reserved would pass to Walter and Michelene on July 1, 1958. Walter and Michelene gave a first mortgage to Paulina in the sum of $3,333.34, and a mortgage to Stanley in the sum of $6,666.66. In October, 1956, Michelene obtained a divorce from Walter. The judgment required Walter to pay $2,800 to Michelene and required Michelene to execute a quitclaim deed to Walter conveying her interest in the Pasternak farm. In September, 1957, Walter gave a warranty deed of the farm to. Michelene subject to all of the provisions in the 1956 deed, and also providing that if within ten years Walter paid Michelene the sum of $3,862.03 plus any payments which she might make on the mortgages in favor of Stanley and Paulina, then Michelene would reconvey the farm to Walter. Michelene testified that at the negotiations in September, 1958, she was making a claim for over $6,000, and her counsel asserts in his brief that the difference between the amount she claimed and the $2,800 due under the judgment was the amount she had paid to Stanley and Paulina on their mortgages on the farm.
The stipulation provided that Stanley would pay Michelene the sum of $5,000 on or before November 1, 1958; that Michelene would execute a satisfaction of her judgment against Walter, would convey all her interest in the farm by warranty deed to Stanley subject only to the mortgage to Paulina which Stanley assumed and agreed to pay, and subject to unpaid real-estate taxes which Stanley also assumed and agreed to pay. Michelene agreed to pay a note of Walter's in the amount of $400 owed to a bank, and Stanley agreed to satisfy the mortgage given to him by Walter and Michelene on the farm. The stipulation provided that if the money was not paid by Stanley on or before November 1st, Michelene might, without further notice, enter judgment for $5,000 against Stanley upon depositing her warranty deed and satisfaction of judgment with the clerk of circuit court.
Additional facts will be referred to in the opinion.
1. Was the stipulation "made in court and entered in the minutes?" Sec. 269.46 (2), Stats., provides:
"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."
Appellants claim that the stipulation was neither made in court nor entered in the minutes. On the one hand, the reporter's transcript of the stipulation and the order signed by the court at the foot of the transcript each recite that the stipulation was made in open court. On the other hand, the minute book contains no entry reflecting any proceeding in court in this action on September 29th. There was no other proof from which the presence or absence of the clerk, the sheriff, or their deputies could be inferred.
What apparently occurred was typical of many settlements reached just as a hearing or trial in a matter is about to begin. At the time of the hearing on appellants' motion to set aside the judgment, Judge MURPHY dictated the following statement:
"The court by reason of a definite, independent recollection and for the purpose of completing this record, states that several conferences were held by the judge with Attorney Wittkopf, Attorney Allen Wittkopf representing the plaintiff and Robert D. Murphy representing Walter Pasternak; that several proposals were made and an agreement was finally reached between the attorneys and Mr. Robert Murphy saying he would recommend to all of the defendants the settlement offered by Mr. Wittkopf as attorney for the plaintiff. Attorney Robert Murphy left the courtroom with Walter Pasternak, Stanley Pasternak, and Paulina Pasternak and went into the lawyers' conference room. After about an hour all of the parties and Robert D. Murphy returned into the courtroom and Mr. Murphy said the proposition offered by the plaintiff was agreeable except that Paulina Pasternak wanted to preserve her mortgage on the premises. There was a long colloquy between the lawyers and the court and between the judge and the parties all seated in the courtroom within the hearing of everyone. The court especially and pointedly questioned Stanley Pasternak as to the provisions of the proposed settlement and after the court was thoroughly satisfied that everybody understood what was agreed upon, the court with the consent of the parties dictated in open court the settlement."
While Stanley and Paulina denied, somewhat vaguely at times, that they fully understood that Stanley agreed to pay $5,000 out of his own pocket, and the testimony of Attorney Murphy is not entirely clear, all the other testimony is consistent with the statement of Judge MURPHY just quoted.
"When a judge is attended by the court officials and the parties and their counsel and witnesses and proceeds with the dispatch of judicial business, the court is in session, even if the sitting happens to be in a portion of the building that does not have the word `courtroom' upon its doors."
Bloomer v. Bloomer (1928), 197 Wis. 140, 142, 221 N.W. 734.
Although sec. 59.39 (4), Stats., requires the clerk to keep the minute book and write therein a brief statement of all proceedings in open court, and no entry was made showing that court was in session at the time this stipulation was made, the recitations in the transcript attested by the reporter and in the order signed by the court and filed in the office of the clerk are at least presumptively correct. While the reporter did not record the statements made by the parties or the attorneys before the stipulation was dictated, it is undisputed that all the parties were present at the time of the dictation. We conclude that the record sufficiently shows that the stipulation was made in court.
This court has held that where the judge makes the minutes of the stipulation, that is sufficient for the purposes of sec. 269.46 (2), Stats. "There is nothing in sec. 269.46 (2), Stats., specifying the person who shall enter a stipulation in the minutes."
Urban v. Trautmann (1946), 249 Wis. 264, 267, 24 N.W.2d 619.
It has been held that a record of a stipulation made by the official court reporter constitutes a sufficient entry in the minutes under sec. 269.46 (2), Stats.
Czap v. Czap (1955), 269 Wis. 557, 560, 69 N.W.2d 488.
We conclude that the stipulation of settlement in this action was binding, and supported the judgment entered after Stanley failed to comply with its terms.
2. Claim of unfairness in the compromise settlement. In the circuit court appellants apparently confined their attack to the matters previously discussed in this opinion.
On appeal, they suggest that the settlement was unfair because Michelene did not have title to the farm and Stanley therefore may have obtained too little in return for the obligations he assumed. Michelene had claimed title in her complaint in this action and whether she had it was one of the issues which the parties were compromising. It does not appear that she had ever divested herself of whatever interest she acquired as grantee (with Walter) in the 1956 deed from the eider Pasternaks.
In any event, she had whatever interest she received as grantee in Walter's deed. Appellants claim that this latter deed was ineffective because it violated the restriction against sale contained in the 1956 deed from Stanley and Paulina. It is not at all clear, however, that a conveyance from Walter to Michelene constituted a "sale" within the meaning of the restriction in the deed in which they were both grantees, and whether it did constitute such sale would be one of the issues which the parties were settling.
Appellants also assert that Walter's deed to Michelene was a mortgage, and that he could redeem by payment according to its terms. We do not decide on the present record whether Walter's participation in the stipulation constituted a waiver of or estopped him from exercising, his right to redeem. Appellants have not shown that Walter claims that he retained the right to redeem notwithstanding the settlement. But whatever his right may be since the settlement, by the terms of the deed he could only redeem by payment of $3,862.03 plus whatever payments Michelene made on the mortgages to Stanley and Paulina. It was evidently her claim that at the time of the settlement the amount which Walter would have been required to pay in order to redeem had grown to $6,000, and this amount would have increased if there had been no settlement and she had made further payments on the mortgages of Stanley and Paulina. By the terms of the settlement, Stanley agreed to satisfy his mortgage and to pay the mortgage to Paulina. Walter not only participated in the stipulation of settlement, but received substantial benefits from it, namely, the satisfaction of Michelene's $2,800 judgment and her agreement to pay his $400 note. It seems clear at the least, that if Walter should ever assert any interest in the farm as against Stanley, a court would be bound to give some effect, as a matter of equity, to Walter's participation in the settlement and resulting benefit to him.
Appellants' motion to set aside the judgment was orally denied within a year after the stipulation was made as well as within a year after judgment. The written order appealed from was not entered until more than a year after the stipulation was made, although it was still within a year after notice of the judgment. It may be that at the time of entry of the written order, the circuit court had lost the power to relieve Stanley from the stipulation. We have reviewed the matter, however, as if the time had not elapsed.
Sec. 269.46 (1), Stats.
The fact that a settlement appears by hindsight to have been a bad bargain is not sufficient by itself to warrant relief. If it were clearly a bad bargain, that fact would have weight when coupled with the circumstance that a party did not have counsel at the time of entering into an oral stipulation and his claim that he did not understand its terms. In the case before us, the circuit court was satisfied that Stanley understood the terms of the settlement. At best, Stanley received title to the farm for $5,000 plus assumption of whatever balance was unpaid on the mortgage to Paulina and satisfaction of his own mortgage against it. At the worst he acquired a mortgage from which the farm could be redeemed. According to Michelene's claim, the amount required for redemption would exceed the amount Stanley paid. In any event, the settlement enabled Stanley to dispose of his son's financial obligations to Michelene and terminate the lawsuit she had begun against all three. The terms of the settlement were by no means so unfavorable as to lead to the inference that Stanley could not have understandingly assented to it. Considering all the circumstances, we find no abuse of discretion on the part of the circuit court in refusing to set the judgment aside.
By the Court. — Order affirmed.