Galbreath v. Rogers

Ellison, J.

I. In some instances and under some circumstances courts, will relieve parties of stipulations made in a cause, but it is never done merely, for the reason that the case has gone contrary to the expectation of the stipulator. Something was said to the effect that the reply setting up an estoppel in the test case was in the nature of a surprise to defendants, as the first reply was simply a general denial of the new matter in the, answer. But the stipulation was entered into before the answer or either reply was filed and could not have been made with a view to any particular state of the pleadings. At the .first trial of the test case the defendant was successful, and the defendants now. resisting this stipulation were then quick and eager to enforce it, and did enforce it by having judgments entered in accordance therewith. But on t he second trial of the test case, the plaintiff was successful, and when he in turn undertakes to enforce the stipulation against those defendants, they resist. Their case is not good. There is no reason why they should not abide by the stipulation.

II. One of the defendants is a married woman, she owning some of the abutting property by general title, and the additional point is made that she cannot be bound by the stipulation. I am of the opinion she can. Section 3468 of the Revised Statutes provides that, “in all actions by husband and wife, or against husband and wife, they may prosecute the same by attorney, or they, or either, may defend by attorney; and it shall not be necessary for the wife, in any such case, to ‘sue with her husband by next friend or appear and defend by next friend.” See, also, Asbury v. Odell, 83 Mo. 267. Under this statute it would seem that,. as she can apirear in person or by attorney and defend herself, or in conjunction with her husband, as the case may be, she should be bound by the proceedings in court, had in connection with the case. The stipulation is not properly a contract. It is a proceeding in court and under the supervision of the court. Bishop, in his work on Married Women (vol. 2, sec. 386), says, in connection with the matters in some degree applicable here, that, “ judicial proceedings, conducted and entered of record in due form, without fraud, bind the parties to them, whether those parties are capable of binding themselves out of court or not.”

As the judgment in the test case has been reversed and remanded by us at this term, it follows that, though, we sustain the court below in this case, it, too, must be reversed and remanded to abide the result in the other.

Hall, J., concurs; Philips, P. J., having been of counsel, not sitting.