Thomas v. Poole , 54 N.C. App. 239 ( 1981 )

282 S.E.2d 515 (1981)

Robert L. THOMAS, Administrator of the Estate of Joyce Thomas, Deceased
v.
Ernest Edward POOLE, Jr., and Guy R. Rankin Security Service Corporation, t/a Vanguard Security Service.

No. 8014SC1059.

Court of Appeals of North Carolina.

October 6, 1981.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Hatcher Kincheloe, Charlotte, for plaintiff-appellee.

Spears, Barnes, Baker & Hoof by Alexander H. Barnes, Durham, for defendant-appellant.

CLARK, Judge.

In determining whether the trial court erred in denying the corporate defendant's motion to dismiss the complaint on the ground of insufficiency of service of process, we elect first to direct our attention to the question of waiver of the defense. We think it is clear that corporate defendant waived its right to assert the defense of insufficiency of service of process by the jurisdiction stipulation contained in the proposed pre-trial order which was duly signed and filed by counsel for plaintiff and defendant on 15 December 1978. The first stipulation contained in this pre-trial order reads as follows: "It is stipulated that all parties are properly before the Court and that the Court has jurisdiction of the parties and subject matter."

The courts in this State look with favor upon stipulations designed to simplify, shorten or settle litigation and save costs to the parties. R. R. Co. v. Horton, 3 N.C.App. 383, 165 S.E.2d 6 (1969). Parties may establish by stipulation any material fact that has been in controversy between them. Where the stipulations of plaintiff and defendant have been entered of record, and there is no contention that the attorney for either party was not authorized to make such stipulations, the parties are bound and cannot take a position inconsistent with the stipulations. Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966); Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 (1958). Where facts are stipulated, they are deemed established as fully as if determined by a jury verdict. The stipulations are judicial admissions and are therefore binding in every sense, preventing the party who agreed to the stipulation from introducing evidence to dispute it and relieving the other party of the necessity of producing evidence to establish an admitted fact. Smith v. Beasley, 298 N.C. 798, 259 S.E.2d 907 (1979); Realtors, Inc. v. Kinard, 45 N.C.App. 545, 263 S.E.2d 38, cert. denied, 300 N.C. 375, 267 S.E.2d 677 (1980). The stipulation entered into on 15 December 1978 between the parties acknowledged that all parties were properly before the court and that the court had jurisdiction over the parties. There has been no allegation presented that the attorneys for corporate defendant were unauthorized to enter into such a stipulation. The stipulation was valid between the parties as a judicial admission and was clearly intended by them to be a partial settlement of some of the issues to be presented at trial. This stipulation was a submission to the jurisdiction of the court and therefore prevents corporate defendant from now asserting as a defense the insufficiency of service of process. Though the stipulations were contained in a "Pre-trial Order" which was never effective as a final pre-trial order under G.S. § 1A-1, Rule 16(7) because never approved and signed by a trial judge, the stipulations were nevertheless judicial admissions and binding on the parties.

The corporate defendant filed on 4 September 1980 a "Withdrawal of Stipulation" providing that it "withdraws that stipulation... to the effect that all parties are properly before the Court and that the Court has jurisdiction of the parties." Corporate defendant did not allege that the stipulation was inadvertently or mistakenly made, or that it was made by counsel without authority, or that there was any other just cause for withdrawal.

A party to a stipulation who desires to withdraw or repudiate it should seek to do so by motion in the cause on notice to the opposite party. And delay in asking for relief may defeat the right to withdraw or set aside. Napoli v. Philbrick, 8 N.C.App. 9, 173 S.E.2d 574 (1970); R. R. Co. v. Horton, supra; 83 C.J.S. Stipulations § 30 (1953).

We find that the corporate defendant's attempt to withdraw the stipulation was ineffective. Having so found, it is not necessary to determine if corporate defendant waived its lack of jurisdiction defense by delay in requesting a hearing for a period of more than four years and seven months after raising the issue in its answer and after this Court had ruled on the appeal from the summary judgment.

The order of the trial court denying the motion to dismiss for insufficiency of service is

Affirmed.

MORRIS, C. J., and WELLS, J., concur.