Woodman v. Missionary Society of the M. E. Church/Opinion of the Court

This writ of error was docketed here October 12, 1885. On the eighth of June, 1887, the parties of record entered into the following stipulation: 'It is hereby stipulated and agreed by and between the parties to this cause, by their respective attorneys, that the writ of error and appeal herein be dismissed, and the said cause discontinued, without costs to either party; that each party pay his own costs in this court, and in the courts below; that the bond for damages executed by plaintiffs in error and sureties be canceled and the liability of the obligors discharged. An order shall be entered with the clerk accordingly.'

Our rule 28 is as follows: 'Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case 'Dismissed,' and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court.'

Pursuant to this rule the stipulation of the parties was presented to the clerk of this court, on the eighth of June, 1887, in vacation, and he entered the case 'Dismissed.' No mandate or other process has as yet been ordered by the court. Albert M. Henry claims to have purchased from Charles B. Colton and Lester A. Roberts, two of the plaintiffs in error, their respective interests in the land which is the subject-matter of the controversy in the suit, on the sixteenth of May, 1887, before the stipulation was signed. He now comes here and by petition asks 'that an order be entered in this court setting aside and vacating said order of discontinuance, so that your petitioner may have said cause revived as to himself, as the grantee and assignee of said complainants, Colton and Roberts,' on the ground that the stipulation was signed after his purchase and without authority from him.

Upon consideration of this petition it is ordered that the entry of dismissal made in vacation be amended by adding thereto these words: 'Without prejudice to the right of Albert M. Henry to proceed as he may be advised in the court below for the protection of his interest.'