Simmons v. Murray

Spencer, J.

This is an action by Monroe T. Simmons, special administrator of the estate of Rose Wilkins, deceased, for the specific performance of an oral settlement agreement which had been partially performed by the plaintiff. The trial court found that the parties had entered into the settlement agreement but because the agreement had not been reduced to writing as required by local court rule he held it to be unenforceable and rendered judgment for Louis N. Murray, defendant. We reverse.

The original action, filed September 2, 1966, was to set aside a deed given by the incompetent to defendant on December 23, 1965. The attorneys had discussed the settlement on previous occasions but when no agreement could be reached the trial court set the case for trial for September 11, 1968. On September 10, Robert G, Scoville, plaintiff’s then counsel, was invited to the law office of Norris G. Learner, then attorney for defendant, where in the presence of the defendant and the defendant’s secretary he discussed settlement with Mr. Learner. A settlement agreement was reached and Mr. Scoville left the office to permit Mr. Learner to discuss the proposed agreement with the defendant. When Mr. Scoville returned he was told that the settlement was accepted. The attorneys then agreed that Mr. Scoville was to call the judge and tell him that the case would not be tried as it had been settled. This Mr. Scoville did. Before the settlement agreement was actually performed, Mr. Scoville left town. During his absence, Mrs. Wilkins died. When he returned the defendant refused to proceed with the settlement.

The decision not to enforce the settlement was based on a Rule of Practice of the Eighth Judicial District of Nebraska. The rule was not introduced in evidence and is not a part of the record herein. Defendant’s brief would indicate that it reads as follows: “All stipulations and private agreements of counsel or of parties to a suit, unless made in open court during trial, must be reduced to writing and signed by the parties or their attorneys making the same or they will not be enforced.”

The difficulty with defendant’s position herein is that the local court rule he relies on, if material, is not before us. It was not introduced in evidence nor made a part of the bill of exceptions herein. While the local court could take judicial notice of its rules of practice, that is not the situation here.

As early as 1899, this court held in Dunn v. Bozarth, 59 Neb. 244, 80 N. W. 811, that the Supreme Court “will not take judicial notice of the rules of practice of the district court.”

In Federal Farm Mtg. Corp. v. Hughes (1940), 137 Neb. 820, 291 N. W. 475, we said that the rules of practice in a district court cannot enter into a determination of a question presented in the Supreme Court unless incorporated in a bill of exceptions, since the Supreme Court will not take judicial notice of the rules of practice of a district court. See, also, Nile Valley Fed. Sav. & Loan Assn. v. Schank (1962), 174 Neb. 35, 115 N. W. 2d 774.

The trial court specifically found that the agreement had been made. We accept that finding. The obvious inconsistency of the defendant’s evidence makes that conclusion inevitable. The agreement was made in the presence of the defendant, and it must be inferred that he consented to it. In performance of the agreement, Mr. Scoville told the judge that the case had been settled and would not be tried. As early as 1881, in Boyce v. Berger, 11 Neb. 399, 9 N. W. 545, this court said: “A parol agreement of compromise which has been executed is of equal effect with one in writing.” As we said in Stuart v. Torrey (1921), 106 Neb. 608, 184 N. W. 215: “The law favors and encourages settlements, and in the absence of fraud, error, or mistake, they should not be set aside.”

An attorney normally has the power to make agreements regarding procedural and fact issues, and we assume the rule in question refers to such procedural agreements. The agreement herein, however, is not a procedural agreement but is one settling the litigation. The New York court, faced with an identical issue, said: “Neither was the agreement in this case required to be in writing under Rule 4 of the Rules of Civil Practice requiring stipulations to be in writing unless made in open court. That rule is applicable only to agreements relating to matters in the action and it does not apply to an agreement completely disposing of the action and of the claim upon which it is based.” Langlois v. Langlois (1957), 169 N. Y. S. 2d 170, 5 App. Div. 2d 75. See, also, In re Gardiner’s Estate (1953), 126 N. Y. S. 2d 121, 204 Misc. 884.

The Georgia court in a like situation, said: “ * * The rule of court, that no consent between attorneys or parties, if denied, will be enforced if not in writing, has no application to an oral agreement and compromise of a pending suit. The settlement of doubtful issues involved in a pending cause is a sufficient consideration to support an agreement of settlement and compromise.’ ” Kapiloff v. Askin Stores Inc. (1947), 202 Ga. 292, 42 S. E. 2d 724. See, also, Herndon v. Herndon (1971), 227 Ga. 781, 183 S. E. 2d 386.

The judgment is reversed and the cause remanded to the trial court with directions to enter a judgment for specific performance of the agreement.

Reversed and remanded.