The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-04-18
DECISION OF
SUPREME COURT

In the Supreme Court, State OF
Worth Dakota, October, 1900, Term
Northern Pacific Railway Co. respon-
hient, We. Harriet A. Barlow. appellant.
l. In November, 1908, at the in
stance and request Of plaintiffs coun-
@el stipulation was entered into en-
bracing the facts relevant to all issues
Hrrcept one. Such stipulation was en-
f&sred into in good faith, without fraud
or any attempt to deceive PLAINTIFFS
counsel, and after most careful consid-
VIBRATION. Defendants counsel in good
Gaith relied upon such stipulation for
knearly six years. In March, 1908. the
cause was tried and submitted upon
such stipulated facts and certain testI
Eanony relevant to the issue not covered
by the stipulation. In May following
EHhe trial, the court made it's findings of
Mact and conclusions Of law favorable
10 plaintiff and ordered Judgment ac-
tcordingly, which was entered pursuant
&hereto on May IA, 1908 Defendants
Ecounsel thereafter took steps to settle
a. statement Of the case preparatory to
appealing to this court, and on July
20, 1908, on application of PLAINTIFFS
counsel, an order was made recurring
defendant to show cause why an order
should not be made vacating and set =
ding aside such findings of fact, con-
eluslons OF law, order for Judgment
and judgment, and also why plaintiff
should not be relieved from a. portion
OF such stipulation of facts or why
such stipulation Of facts should not be
modified by eliminating such portion.
or why the parties should not be re- !
heVed In toto from such stipulation. |
Upon the return of such order to show
cause, and after due hearing, the or
der complained Of was made vacating
the findings, conclusions, order for
judgment and Judgment |
Held: /. That such order. in so far
as 1t vacates the findings Of fact and
relieves the parties from such stipula-
ZION, Is appealable under subdivision
e, section 1925, r. G. 1905. upon the
eground that 1t involves ne merits of
Ahe action or some part thereof"
q. whether such order, in effect.
grants new trial and therefore is ap-
pealaDle under the provisions Of sub
inlvis1on Of said section, not deter
mined
.. while the trial courts may, in the
se1erclse or sound judicial discretion.
and in furtherance of justice relieve
parties from stipulations which thew
nave entered into in the course of iu- |,
dicial proceedings, and while this court
sitting as court of review. will not
interfere with nor control the exercise
or such discretion thus vested in trial
courts, except in cases of a clear abuse ,
" such discretion, the facts presented :
disclose a manifest abuse of discretion ;
IN granting the order appealed from.
a. The making of such stipulation )
should be encouraged rather than dis :
couraged by the courts, and enforced ;
nnles5 good cause is shown to the con- !
trary, and applications to be relieved :
Grom stipulations should be seasonablv J
made. Parties will not be relieved
from such stipulations In the absence ;
or a clear showing that the fact or !,
Facts stipulated are untrue. and then =
only then the application for such re-
lief Is seasonably made and good causa !
Is shown for the granting of such re- !
aief. The facts in the case at bar do !