Richardson v. Musser

Department No. 1, McKinstry, P. J.:

Complaint by plaintiff, claiming to be the owner, to recover possession of certain real estate held adversely by defendants. Answer, general denial; that the action is barred by the provisions of certain sections of the Code of Civil Procedure; and by some of defendants, an admission that they are severally in possession of designated portions of the demanded premises, and a disclaimer as to the rest.

1st. The petition of the administrator of the estate of Ann Dubois, deceased, of the 21st of November, 1859, was sufficient to give the Probate Court jurisdiction to make the order of sale of the real estate. The petition contains every averment made necessary by the statute then in force. (§ 155, Probate Act of 1851, Statutes 1851, p. 448.)

2nd. Nor, as the law then stood, was it requisite that the attorney appointed to represent the minor heirs should have ten days’ notice of the hearing of the petition. (See Probate Act of 1851, § 159, as the same read prior to the Amendment of 1861.)

3rd. The District Court committed no error in relieving defendants of the stipulation which had been entered into by counsel. It clearly appeared that it was signed inadvertently and under a mistake, in respect to a fact of which plaintiff must be presumed to have had knowledge, to wit: the plaintiff’s age—and that counsel for defendants were misled to consent that plaintiff’s age was nineteen years, (when in fact it was twenty-eight or thirty) by representations, which however innocently made, were both erroneous and such as counsel for defendants could rely upon without any suspicion of negligencc on their part. There can be no doubt of the power of the trial court to relieve a party from the effects of a stipulation which admits as a fact that which is not true, if the application is made in proper time.

4th. There was no motion for a new trial on the ground of “ surprise.” If there had been, there is nothing in the transcript to indicate but that plaintiff had ample opportunity to prove her age to be less than claimed by defendants, on the motion to set aside the stipulation, if she had desired to do so. On the hearing of the motion to set aside the stipulation, there was no dispute that she was of about the age alleged by defendants.

Judgment and order affirmed.

McKee, J., and Ross, J., concurred.