Haylen v. Missouri Pac. R. , 28 Neb. 660 ( 1890 )

Maxwell, J.

This case is submitted on a motion to dismiss because no summons in error was issued within one year from the rendition of the judgment and served on the defendant.

The record shows that final judgment was rendered June 28, 1888. On the 22d of November, 1888, the transcript was filed in this court but no summons in error was demanded or issued.

The attorney for the plaintiff in error in resisting the motion files an affidavit to the effect that he had an oral agreement with the attorney for the defendant to waive service of summons in error, and for that reason no summons was issued. The attorney for the defendant also files an affidavit in which he admits that he agreed to waive service if the case was presented to him for that purpose within one year from the time the judgment was rendered, but that he never agreed and in fact had no authority to waive service after the. expiration of the year. This court has repeatedly held that oral agreements of attorneys in regard to a case if made out of court would not be enforced, because of the want of certainty in regard to them, while oral agreements publicly made in open court, or agreements in writing duly signed, will be.

This, of course, only applies where the matter agreed upon is within the scope of the authority of the parties to the agreement, but the cases where the authority. will be exceeded probably will not be numerous.

The alleged agreement in this case being oral and made out of court, it cannot be enforced. The motion must therefore be sustained.

Motion sustained.

The other judges concur.