Keys v. Warner

45 Cal. 60

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,349
• Status: Published

Opinion

By the Court:

The judgment of the Court below purports to have been rendered in pursuance of the stipulation of the attorneys of the respective parties, and there can be no just pretense that the stipulation did not fully authorize the judgment entered.

Nor do we think the Court erred in vacating the order submitting the motion to set aside the Judgment and allowing further affidavits to .be filed. After a cause has been submitted to a Court for a judgment, it lies very much within its discretion whether the case may be reopened for the mere purpose of hearing further testimony. But, if there were error in vacating the order submitting the motion, that error was waived by the defendants when they availed themselves of the permission given to file an affidavit in their own behalf. There being no error in receiving the affidavits, there could, of course, be none in afterwards' considering them/ i

By the terms of the stipulation the judgment was to be set aside in case a certain certiorari case, then pending in this Court against the Supervisors of Marin County,, should be finally decided for the defendant, “ upon the ground that the highway mentioned therein is established.” The record shows that the certiorari case referred to was decided for the defendant and the writ dismissed, but not upon the ground or for the reason named in the stipulation.

The parties having made their own stipulation, we cannot alter it or change its terms, or relieve the defendants from its obvious consequences.

Judgment and order affirmed.