Collis v. Cone

Mr. Justice Eakin

delivered the opinion of the court.

The only contention urged by the plaintiffs is that, by reason of the irregularity of the proceedings, the judgment should be reversed and remanded for a new trial, because the court did not make findings of fact. Without appearing to approve or indorse the irregularity of the proceedings had, we find that the judgment should be affirmed. It appears that the divergence from the regular form of procedure at the trial was agreed to by the attorneys in the presence of their clients, and it was done for the benefit of the parties, and to avoid the necessity of making formal findings of fact. We think' that the parties should be bound by the result, if, by stipulation or agreement of the parties in a law case tried by the court, the making of findings by the court may be waived. They agreed in open court that the proceeding followed might be adopted to relieve the court of the time and labor of making findings, thereby inducing the court to take up the trial of the case. No wrong is complained of, other than as plaintiff’s remedy upon appeal is affected.

The provision of the statute that, in all actions tried by the court without the intervention of a jury, the decision shall state the facts found and the conclusions of law separately, without argument or reason therefor, is a provision for the benefit of the aggrieved party. Bay lies’ Trial Practice, p. 279. And the rule is that any matter that involves the individual rights of parties to a cause may properly be made the subject of a stipulation between them. They may, by a stipulation, waive the benefit of a statutory or constitutional provision, rule of law, or any irregularities. 36 Cyc. 1285; Baylies’ Trial Practice, p. 281; Smith v. Rowley, 66 Barb. (N. Y.) 502. In legal proceedings parties are held by particular conduct or admissions conclusively to have waived rights which otherwise they might have insisted upon. If jurisdiction to act exists, and the only objection to its exercise is one intended for the protection of the party complaining thereof, such right may be waived. Thompson, Trials, Section 1438. This right to waive a rule of law or a constitutional provision enacted for his benefit or protection may be waived, where it is exclusively a matter of private right and does not involve questions of-public policy, or morals; and, having once waived it, he cannot invoke its protection. 20 PI. & Pr., p. 607; Sentenis et al. v. Ladew et al., 140 N. Y. 466 (35 N. E. 651: 37 Am. St. Rep. 571); Bank of Ravenswood v. Hamilton et al., 43 W. Va. 78 (27 S. E. 297); In re Cooper, 93 N. Y. 507; Lee v. Tillotson, 24 Wend. (N. Y.) 337 (35 Am. Dec. 624). Where parties stipulated that the court’s decision should be expressed in a verdict, for the purpose of relieving the court of the necessity of making formal findings, it was in effect an agreement that findings should not be required or made. The stipulation necessarily operated as a waiver of the findings, and took the case out of the statute. Blomberg v. Stewart, 67 Wis. 455 (30 N. W. 617).

We find that there was no error committed by the trial court of which plaintiffs can complain. The judgment is affirmed. Affirmed.

Mr. Justice Burnett took no part in this decision.