STATE ex rel. MARCELLUS L. COUNTRYMAN v. WILLIAM LOUIS KELLY

Minnesota Supreme Court1905-04-14No. Nos. 14,287—(13)

94 Minn. 407

Summary · law.co

Holding. The writ of mandamus is discharged. By entering into a stipulation with the opposing party fixing a deadline to serve a proposed case, the defendant waived the notice requirement of the court rule and became bound by that contractual deadline; after the deadline expired, any right to serve the case existed only at the trial judge's discretion, not as a matter of strict legal right.

A defendant in a civil case sought mandamus relief to compel a trial judge to settle and allow a proposed case (bill of exceptions) for appeal purposes. The defendant argued it had a right to serve the case late because no formal notice of the judge's decision had been served on its attorney, relying on a court rule that computed time from service of such notice. However, the parties had previously entered into a written stipulation agreeing to a specific deadline for submitting the proposed case, which the defendant did not meet until nearly nine months after the agreed period had expired.

The court held that by agreeing to the stipulation, the defendant waived any right to rely on the court rule regarding notice and instead became bound by the contractual deadline. After that deadline passed, the defendant could only proceed by requesting the trial judge's discretion rather than asserting a strict legal right. Because the defendant's application to the trial court was framed as a demand for a legal entitlement rather than a discretionary request, the trial judge properly denied it.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a party waives notice requirements by entering into a stipulation setting a deadline for serving a case or bill of exceptions
Whether a trial judge may deny a late application to serve a case when based on assertion of legal right rather than request for discretionary relief
Conflict between court rules and statutory provisions governing settlement of cases for appeal

Procedural posture

The defendant petitioned for an alternative writ of mandamus against the trial judge after the trial court denied the defendant's application for leave to serve a proposed case out of time.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

BROWN, J.

Alternative writ of mandamus requiring the Honorable William R. Kelly, one of the judges of the district court of Ramsey county, to show cause why he should not allow and settle a “case” in an action tried before him.

The facts are as follows: The case of Kampfer v. East Side Syndicate, a corporation, and M. R. Countryman, as receiver thereof, was duly tried before respondent without a jury, and he filed his decision therein on March %, 1904. Judgment was duly entered pursuant to the findings on May 11, 1904, and defendant appealed therefrom on November 11, 1904. On February 10, 1905, defendant served a proposed “case” upon plaintiff’s attorney, which was immediately returned as having been served too late. Application was then made to the trial court for leave to serve the proposed “case,” which application was denied; whereupon defendant sued out this writ to compel the trial judge to settle and allow the “case.” No notice of filing the decision in the action referred to was ever served upon, defendant’s attorney, and the right to have the case settled and allowed at this late date is predicated upon rule 47 of the district court rules of practice, which provides that in trials before the court the time for serving a “case” or bill of exceptions shall be computed from the date of service of notice of filing the decision. It is contended that, as no notice of the filing of the decision in the action referred to was ever served upon defendant, the time to settle the “case” had not expired when application was made to the trial judge.

The learned court below denied the application, mainly upon the ground that the rule of court referred to is in conflict with G. S. 1894, § 5400, and therefore inoperative. Whether this view is sound, we need not determine, though we may suggest that, so long as the rule remains unrepealed and in force, attorneys acting upon it in good faith should not be turned out of court on the theory that it is invalid. However, the writ must be discharged on another ground.

It appears from the record before us that at about the time the decision of Judge Kelly was filed the attorneys of the respective parties entered into a stipulation giving defendant thirty days within which to serve a proposed case; that the time was subsequently extended for the further period of thirty days, and no “case” was proposed until nearly nine months after the time so agreed upon had expired. Though a party is not required to take proceedings in an action for the purpose of settling a “case” or bill of exceptions, under the rule of court above referred to, treating it as valid, until notice of filing of the decision is served upon him, it seems clear that he may waive such notice, and does so when he enters into a stipulation agreeing upon a time for that purpose. People v. Circuit Judge, 39 Mich. 123. It is held in this case that by entering into the stipulation defendants waived the notice provided for by the rule of court, and their right to propose a “case,” as a strict legal right, expired at the time fixed by the stipulation, about May 2, 1904. The “case” could only be settled thereafter by an application addressed to the discretion of the court. State v. Searle, 81 Minn. 467, 84 N. W. 324. This application was not so addressed, but, on the contrary, was based upon the asserted legal right of defendant to propose and have settled a .“case” at the time application was made to the court below.

Writ discharged.