Nightingale v. Barens

40 Wis. 236

• Court: Wisconsin Supreme Court
• Decided: August 15, 1876
• Status: Published

Opinion

Lyon, J.

The plaintiff moves that the appeal be dismissed without costs, pursuant to a stipulation to that effect signed by the defendants in person and by the attorney for the plaintiff. The motion is resisted on tbe alleged grounds that the stipulation was procured by fraud and duress. Yoluminous and conflicting affidavits have been read in support of, and in opposition to, the motion. After carefully considering these affidavits, we think they fail to show that the stipulation was improperly obtained from the appellants. On the contrary, it satisfactorily appears that the same was entered into by the appellants deliberately and freely, and that the plaintiff is not justly chargeable with having resorted to any fraud, intimi-1 dation or duress to procure it. The force of the claim put forth by the appellant husband, that he is so unfamiliar with the English language that he did not understand the negotiations which terminated in the stipulation, is greatly weakened, if not destroyed, by the fact that in his affidavits he details with much minuteness alleged conversations which were evidently in that language.

No unfair means having been resorted to by the plaintiff to obtain the stipulation, but the same having been freely and voluntarily entered into by the appellants with full knowledge of what they were doing, the stipulation is valid, within the ruling of this court in Courtney v. McGavock, 23 Wis., 619. Of course, on this motion we cannot consider the merits of the appeal.

By the Gov/rt. — Motion granted.