Southern Colonization Co. v. Howard Cole & Co. ( 1925 )

Rosenberry, J.

Sec. 2832, Stats., pursuant to the terms of which the trial court acted, provides that—

“The court or a judge may likewise in discretion and upon such terms as may he just, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him, through his mistake, inadvertence, surprise or excusable neglect.”

On behalf of the plaintiff it is contended (1) that the writing in question is not a mere stipulation but a binding contract, and that therefore the court had no power to set it aside under the provisions of sec. 2832; (2) that if the court had power, there is no equitable ground for the exercise of that power by the court in this case; and (3) that the court could not set aside the writing in the absence of other parties to the agreement not parties to the action.

The defendant contends that the order setting aside the stipulation is not an appealable order and that the case is ruled by Walters v. Eakins, 172 Wis. 626, 179 N. W. 781. Upon this proposition the plaintiff contends that the agreement in this case was not a mere stipulation but a binding contract, and that the order in effect grants a new trial and is therefore appealable under sub. (3) of sec. 3069, which authorizes an appeal from an order granting a new trial.

The nature of stipulations and their effect have been considered in Illinois S. Co. v. Warras, 141 Wis. 119, 123 N. W. 656, and in cases there cited. A stipulation is a .contract, but it is a contract made in the course of judicial proceedings, and a contract so made has certain incidents that do not belong to contracts made outside of judicial proceedings. In Illinois S. Co. v. Warras, supra, it was held that stipulations were of two classes: first, those relating to merely procedural matters, and second, those which have all the essential characteristics of a mutual contract. The stipulation in this case is no doubt of the second class. It is an agreement between the parties that upon the doing of certain things judgment shall be entered for or against one or the other of the parties in accordance with the facts as they may be made to appear at a future time. If the defendant performed its contract to convey, then judgment was to be entered dismissing the action. If the defendant failed to perform its contract to convey, then judgment was to be entered for the plaintiff for damages in the sum of $20,000. There had been no trial of the action. Sec. 2842 provides: “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” It is universally held that a motion for a new trial cannot be entertained until after a verdict of the jury or final determination by a court or a referee. See 2 Bl. Comm. 387; 20 Ruling Case Law, 217; cases cited under “New Trial,” 5 Words and Phrases.

The court having made no examination of the issues, but the trial having been suspended by a stipulation of the parties and the jury discharged, there has been no trial, the trial having in fact been abandoned. Upon that state of the record there could be no motion for a new trial; and while the language of the order is that “the stipulation is set aside and a new trial of this action on the merits is granted,” this is an inaccurate but common use of the term “new trial.” There is certainly nothing to indicate that it was used in sec. 3069 as applicable to any such situation as presented by the facts in this case. While the matter was not dealt with at length, it wag. distinctly ruled in Walters v. Eakins, supra, that an order setting aside a stipulation for a judgment did not grant a new trial. While the question was not there fully presented or argued, a re-examination of the authorities fully sustains the proposition there stated.

The order not being an appealable order, the case is not before us upon the merits and the appeal must be dismissed.

By the Court. — It is so ordered.