Opinion
No. 16,862.
Decided September 22, 1952.
An action to procure reformation of deeds of conveyance of real estate. Judgment of dismissal.
Reversed.
1. PLEADING — Pre-trial Conferences. In an action for reformation of deeds based upon alleged mutual mistake, it is held: "Under the pleadings in this case, issues of fact were joined upon that question, and, in the absence of an agreement between the parties affected, this issue, as made by the pleadings for determination upon the trial, could not be resolved against the Warrens by order made upon pre-trial conference."
2. JUDGMENTS — Consent. "A consent judgment is not a judicial determination of any litigated right, and it is not the judgment of the court, except in the sense that the court allows it to go upon the record and have the force and effect of a judgment; it is merely the act of the parties consented to by the court."
3. Court Discretion — Appeal and Error. A court has some discretion in the matter of entering a stipulated judgment, "and where it is made to appear that the rights of the defendant, who is the real party in interest, may be changed, modified or prejudiced without his consent by the entry of such a judgment, a refusal to dispose of the case as to any defendant until the rights of all defendants are determined is not error."
4. Real Property. "Decrees reforming deeds, like deeds themselves, are muniments of title and prima facie evidence of ownership."
5. PRACTICE AND PROCEDURE — Stipulations. "Legal maneuvering, under which the stipulation becomes a judgment, should not permit the accomplishment by indirection of that which could not be done directly."
6. Stipulations — Dismissals. In a proceeding for the reformation of deeds, it is held that the trial court could not properly dismiss the action as to all defendants; that because of an agreement between plaintiffs and some of the defendants, "judgment should be entered ultimately as provided by the stipulation."
Error to the District Court of Jefferson County, Hon. Osmer E. Smith, Judge.
Mr. FRED S. CALDWELL, for plaintiffs in error.
No appearance for defendants in error.
WE will herein refer to the parties by name. Stripped of nonessentials this case involves the allegations set out in a complaint filed by Wilbur C. Marsh, David W. Eads and Florene M. Eads, in which the named defendants were Clara B. Helme, Frances E. Hastings, Mary Lucille Hastings, James B. Warren and Della M. Warren. Plaintiffs in their complaint present a claim for the reformation of deeds of conveyances of real estate, based upon an alleged mutual mistake in the description of property conveyed by a deed executed by Marsh to Helme in the year 1928. Judgment of reformation of this deed is demanded, together with the correction of all subsequent mistakes which grew out of it including reformation of the deed of February 24, 1951, from Helme, Hastings and Hastings to the Warrens.
The Warrens filed an answer in which they denied the essential facts alleged in the complaint.
Prior to the date of trial, after request for admissions had been served on some of the defendants and appearances had formally been entered by defendants other than the Warrens, plaintiffs Marsh, Eads and Eads entered into a stipulation with the defendants Helme, Hastings and Hastings, the effect of which was to confess all facts alleged in the complaint of the plaintiffs; and thereupon Helme, Hastings and Hastings withdrew from further participation in the case in the trial court. Any rights which might be asserted by Warrens in the property involved in the alleged misdescription were based upon deeds executed by Helme, Hastings and Hastings who thus in effect confessed judgment. The positions of Helme, Hastings and Hastings and the Warrens were identical, in that if the reformation prayed for was to be granted, certain property actually included within the legal descriptions set forth in their respective deeds would be removed therefrom and the ground thus removed would be restored to Eads and Eads who claimed under Marsh as grantee in the deed conveying the lands in dispute, along with other property.
An order was entered following the pre-trial conference which was as follows:
"(1) That Plaintiffs' Pre-trial Exhibit No. 1, being an abstract of title covering the property described in the complaint, may be admitted in evidence at the trial without further identification; that entries numbered 61, 62, 63, 64, 67, 69, 70, 71, 72 and 73 of the abstract of title referred to may and will be received at the trial as evidence of the conveyances referred to in each of said numbered entries without further proof.
"(2) That Plaintiffs' Pre-trial Exhibit No. 2, being the plat referred to in entry No. 24 of the abstract of title, marked Plaintiffs' Pre-trial Exhibit No. 1, may be introduced and received in evidence at the trial without further proof.
"(3) That Plaintiffs' Pre-trial Exhibit No. 3 may be received for the purpose of showing substantial location of buildings and improvements designated thereon.
"(4) That the deed marked Defendants' Pre-trial Exhibit No. 4 may be received on the trial of said cause without further identifications.
"(5) That the attorney for the plaintiff and the attorneys for the defendants for the defendants Warren will exchange the names of witnesses at least 15 days prior to the date set for the trial of this cause.
"(6) That the issue for trial in this cause will be limited to the question of whether or not a mutual mistake was made in the execution and delivery of certain conveyances as set forth in Plaintiffs' Complaint."
The cause came on for trial to the court and the exhibits referred to in the pre-trial order were received in evidence.
Counsel for Marsh, and Eads and his wife, introduced in evidence the interrogatories which had been addressed to the Warrens, together with their joint answers thereto. Also received in evidence was the request for admissions addressed to the Warrens and their joint answers thereto. After the exhibits were received in evidence, as provided by the pre-trial order, counsel for plaintiffs Marsh and Eads made the following statement: "Now, the plaintiffs request the Court to take judicial notice of the stipulation and agreement on file herein between the plaintiffs and the co-defendants Clara B. Helme, Frances E. Hastings, and Mary Lucille Hastings to enter judgment of reformation in accordance therewith, and to accept such judgment as prima facie proof against the defendants James B. Warren and Della M. Warren." Counsel pointed out specifically that he sought the entry of judgment against the defendants who had signed the stipulation, and stated that the Warrens were not mentioned therein and that it was not binding upon them. The court stated: "In the Pre-trial order we stated that the issues for trial in this cause would be limited to the question of whether or not a mutual mistake was made in the execution and delivery of certain conveyances as set forth in the plaintiffs' complaint. In this form of judgment presented by Mr. Caldwell it makes it very plain if we grant that judgment as between original parties, we reform those conveyances without, in my opinion, giving the defendants Warren an opportunity to be heard. I am still of the opinion as I was heretofore that we should decline to sign your judgment now. It is so ordered." Thereupon the following occurred:
"Mr. Caldwell: Then the order of the Court is to refuse to enter judgment.
"The Court: At this time.
"Mr. Caldwell: On the stipulation.
"The Court: That is right, yes, sir.
"Mr. Caldwell: Well, I object to that, and let the record show that the plaintiffs would then rely upon such judgment as prima facie evidence of the mutual mistake as against the Warrens, in view of the order made at the Pre-trial conference, wherein the Court held that the Warrens are not bona fide purchasers for value without notice, and the plaintiffs would then offer and rely upon that judgment as prima facie evidence, and would rest their case. Now, since the Court refuses to enter judgment on the stipulation or in accordance with the stipulation and agreement, the plaintiffs cannot proceed further, and they elect to stand upon their right to have judgment entered upon the stipulation and agreement, and the right to have that judgment introduced as evidence in the case."
No further evidence was offered by Marsh and Eads; no witness was called; and thereupon counsel for Warrens moved for a dismissal of the action. The court sustained the motion and the action was dismissed. The original plaintiffs in the trial court and those defendants who were parties to the stipulation seek reversal of the judgment by writ of error.
With reference to the statements of counsel, above quoted, that at a pre-trial conference the trial court "held that the Warrens are not bona fide purchasers for value without notice," suffice it to say that the record before us discloses no such order. Under the pleadings in this case, issues of fact were joined upon that question, and, in the absence of an agreement between the parties affected, this issue, as made by the pleadings for determination upon the trial, could not be resolved against the Warrens by order made upon pre-trial conference. McCoy v. District Court of Larimer County, 126 Colo. 32, 246 P.2d 619.
At another point in the controversy, after the trial court had refused to enter judgment on the stipulation, counsel for plaintiffs Marsh and Eads stated: "Now, of course, we have no judgment to offer in evidence, but we want the record to show that when such judgment is entered, then we would offer that judgment in evidence, or ask that the Court take judicial notice of it for the purpose of establishing the prima facie evidence of the mutual mistake, as against the Warrens."
The trial court made its position clear by the following statement: "Our trouble is that our only difficulty, Mr. Caldwell, is the effect to be given this stipulation. That is the difficulty. The stipulation seems to me to be so unjust, and shall we say. I wouldn't want to say illegal, but let's say unjust, in asking the Court to take as evidence this agreement between all the parties except the Warrens, and then use that as evidence in granting this judgment."
It is clear that the trial court considered the problem presented as the two phases thereof were related to each other. Entry of the requested judgment was temporarily withheld as a means of requiring the production of competent evidence against the Warrens in support of the allegations of the complaint.
The legal maneuvering of counsel for plaintiffs, under which it was proposed that a written stipulation — which was wholly without evidentiary value against Warrens — should be elevated to the status of a judgment against defendants other than Warrens, then offered as "prima facie" evidence against the Warrens, was calculated to shift the burden of going forward with evidence from the plaintiffs to the defendant Warrens. The trial court did not like the prospect of giving to the stipulation, which was a hearsay instrument so far as the Warrens were concerned, a status in the form of a judgment which might conceivably be used against them to their disadvantage. Actually two separate and distinct questions were involved in the plaintiffs' proposal.
The first question involves the right of plaintiffs to have judgment entered against those defendants who had stipulated for the entry thereof. We direct attention to the fact that the judgment requested was a consent judgment, and as such is distinguishable in some respects from those resulting from contested litigation carried to conclusion by judicial determination. In 49 C.J.S. 308, we find the following pertinent statement: "A consent judgment is not a judicial determination of any litigated right, and it is not the judgment of the court, except in the sense that the court allows it to go upon the record and have the force and effect of a judgment; it is merely the act of the parties consented to by the court."
It is clear from the record herein that the court did not finally and without qualification refuse to enter a judgment in accordance with the stipulation of the parties. The court unquestionably had some discretion in the matter of entering such a judgment, and where it is made to appear that the rights of the defendant, who is the real party in interest, may be changed, modified or prejudiced without his consent by the entry of such a judgment, a refusal to dispose of the case as to any defendant until the rights of all defendants are determined is not error. We know of no authority which compels a trial court to dispose of a cause piecemeal.
[4, 5] Assuming, for the purpose of argument, that the judgment had been entered as requested, the question is presented as to whether the entry thereof could in any manner serve to establish a prima facie case against the Warrens. We are familiar with academic rules and general principles of law declaring that decrees reforming deeds, like deeds themselves, are muniments of title and prima facie evidence of ownership. When considered in connection with the facts present in the cases where the rule has been applied, we have no quarrel with the rule or its application to those facts. We are aware of no case in which those general principles of law have been held to bring about the result sought by plaintiffs Marsh and Eads in the novel situation disclosed by this record. We share the view of the trial court upon this phase of the controversy and are certain that under the very special circumstances of this cause, the stipulation standing alone could not establish a prima facie case against the Warrens. Legal maneuvering, under which the stipulation becomes a judgment, should not permit the accomplishment by indirection of that which could not be done directly. If judgment had in fact been entered, it could not operate to place any burden upon the Warrens in the matter of creating a prima facie case against them.
Upon motion of the Warrens the trial court dismissed the action, not as to Warrens alone, but as to all defendants. This result could not obtain because of the agreement between plaintiffs and some of the defendants, and judgment should be entered ultimately as provided by the stipulation.
The trial court did not err in declining forthwith to enter the judgment requested, under the circumstances disclosed by this record. The cause is, however, remanded with direction to reinstate the complaint with leave to plaintiffs Marsh, Eads and Eads to offer evidence in support of the allegations thereof, and for further proceedings consistent with our views as hereinabove set forth.
MR. JUSTICE HOLLAND dissents.