Seawell v. Yow

HEDRICK, Judge.

When the cause came on for trial, the record indicates that defendant’s counsel made the following statement, “I think we can get in some stipulations prior to the motions.” The record on appeal indicates that thereafter a general discussion was had between the plaintiff’s attorney, the defendant’s attorney, the plaintiff, and the judge as to certain stipulations with respect to the settlement of defendant’s claim against the plaintiff for personal injury and property damage. At the conclusion of this discussion defendant’s counsel stated, “Now I move that the plea in bar be sustained and that the action be dismissed.” After hearing arguments on the motion, Judge Webb announced, “I’ll allow your motion for a plea in bar.” In the order appealed from Judge Webb found and concluded among other things that plaintiff had ratified his insurance carrier’s settlement of defendant’s claim for personal injury and property damage and entered the order dismissing plaintiff’s claim.

Because the defendant’s motion does not contain the rule number under which the defendant was proceeding as required by Rule 6 of the General Rules of Practice for the Superior and District Courts, we are unable to determine under what procedure the court purported to dismiss plaintiff’s claim. While the record on appeal indicates that the parties undertook to enter into some stipulations and that the court even considered such stipulations in making certain findings of fact, there is absolutely no evidence in this record to support the findings of fact made by Judge Webb. Furthermore, there is nothing in the record before us, even if we consider the findings of fact made by the trial judge, to support the conclusion that plaintiff ratified his insurance carrier’s settlement of defendant’s claim against the plaintiff. Thus the record does not support the order dismissing plaintiff’s claim.

For the reasons stated the order appealed from is vacated and the cause is remanded to the district court for further proceedings.

Vacated and remanded.

Judges Vaughn and Clark concur.