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latter served a proposed amendment to said statement, which said amendment consisted in a motion to strike out the whole of the proposed statement and to substitute in lieu thereof the statement of the testimony which now, so far as the evidence is concerned, constitutes the record upon which the order granting the new trial was predicated.

It is claimed by counsel for the appellant that the proposed statement of plaintiff was stricken out because it involved an incorrect synopsis of the evidence. This may be true, but, under the stipulation referred to above and which constitutes the most important part of this record, even if the proposed statement had contained a strictly accurate resumé of the evidence, it would have been the duty of the court to have stricken it out as wholly immaterial, so far as it related to points other than that upon which the stipulation provided that the decision of the cause should hinge.

We have thus given briefly that part of the history of the trial which is de hors the record, but which is disclosed by the briefs of counsel, the verity of which, however, is not disputed, merely to illustrate the uniqueness of the situation presented here, and, perhaps, in discovering, to some extent, the precise motive influencing the judge of the court below, upon reflection, in the exercise of the discretion confided to trial courts in the matter of allowing or disallowing new trials, to order a retrial of the issues presented by the pleadings in this action.

Now, one of the points made by counsel for the respondent is that the stipulation into which the parties entered and upon which the decision of the issues was made to depend, was void, or not binding upon the defendant, because it neither appears that the latter filed an agreement with the clerk authorizing his attorney to make such stipulation, nor that such an agreement was entered in the minutes of the court. (Code Civ. Proc., sec. 283, subd. 1.)

But we are not prepared either to affirm or deny, nor, for the purposes of this case, is it deemed necessary to decide, the proposition whether the stipulation referred to constitutes one of “the steps of an action or proceeding' in order to take which an attorney must first obtain from his client special authority evidenced in the manner prescribed by the section of the code above cited, or whether it constitutes an



act within the scope of the general authority of an attorneyat-law over his client's cause during the progress of the trial thereof. For, even assuming that the attorney had the authority to make the stipulation as one of the ordinary acts within the scope of his general agency or authority, we regard the stipulation as most unusual in its nature and so improvident in its scope that it is manifest that the trial court, upon further consideration of it after the judgment was rendered and entered, reached the conclusion that it would be unjust to compel the defendant to be bound by its terms, and, therefore, in the interest of justice, granted his application for a new trial.

It is not an unusual practice, nor one beyond the general authority of an attorney, to stipulate, during the progress of a trial, that a certain absent witness, if present at the trial, would give certain testimony essential to his adversary's case or defense, or to agree to the recitals of a deed or some public record which it might be impossible, for any reason, or inconvenient to produce in court; but it is, as before declared, and it should be, a most unusual practice for an attorney to stipulate that the unsworn statement of a person as to a fact without the proof of which the plaintiff could not sustain his action or the defendant his defense should be accepted as conclusive evidence of the truth of all the material allegations of the complaint or of the answer. And the more startling is such a stipulation where, as is true of the one in the case at bar, it involves an agreement that, as to the all-important fact to which it relates, the mere opinion of a person, although an expert on such subjects, shall be conclusive of its verity, provided such opinion coincides with the plaintiff's theory of the case.

We have no disposition to indulge in a general animadversion upon opinion testimony. Such evidence often be. comes absolutely necessary in the proof of an essential fact, and it is always to be given such weight as it appears in each case to be justly entitled to; but it ought not to be necessary to say that when that character of testimony is relied upon or becomes necessary in the proof of a fact which goes to the very gist of the main point of controversy in an action at law, it should make its appearance in the record in the highest garb known to the law and under such circumstances as

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that it may be rebutted, if it can be, or its accuracy tested by the methods usually invoked for that purpose. Therefore, no such stipulation or agreement by counsel as the one involved here should be tolerated in any case, much less one involving valuable property rights or, as here, a large sum of money. A trial thus conducted is in effect more in the nature of an arbitration than a trial, but even less satisfactory than the former method of settling disputed questions of fact.

It is obviously the first duty of the courts to see that litigants shall have their rights judicially determined only after a fair and impartial trial according to the mode prescribed by law. To place a litigant's rights in a trial thereof at the mercy, so to speak, of the ex parte opinion of any person, however well qualified such person may be to speak on the subject to which his opinion relates, is not to give such litigant's rights a fair and impartial trial according to the recognized or prescribed forms by which only issues of fact are authorized to be tried.

We doubt not that the court below, after that careful reflection which is afforded to trial courts by a motion for a new trial, reached the conclusion that the scope of the stipulation was entirely too far-reaching, and calculated to prevent a fair and proper consideration of the merits of the case. At all events, it is manifest that the judge regarded it as not involving the proper way in which to try important questions of fact, and considered it to be in the interest of justice to submit those questions to a retrial in the usual and proper mode.

We have not been cited to, and are unable, after some independent investigation, to find any case in California, or from other jurisdictions, which, in its facts, is precisely sim: ilar to this, but in Harvey v. Thorpe, 28 Ala. 250, [65 Am. Dec. 344], where the attorney for the defendants signed an agreement admitting certain material facts in the case, and from the consequences of which agreement the defendants succeeded in relieving themselves at the trial, the court said: Conceding, so far as the present case is concerned, that attorneys may bind their clients by such admissions as were here made, it is only necessary to observe that where they are made improvidently and by mistake, the court, by means of its coercive powers over its own officers, has authority to

20 Cal. App.-34

relieve against the consequences of the admission, regulating its action in this respect with a just regard for the rights of both parties, which it can do by setting aside the agreement upon terms which will meet the justice of the particular case," citing 1 Greenleaf on Evidence, sec. 206.

It is true that in that case the court was dealing with an objection to the action of the trial court in permitting the defendants to introduce evidence in opposition to their agreement or admissions; but upon the point under consideration we are unable to draw any distinction in principle between that case and this. The stipulation in the case here did not and could not have the effect of binding the trial court or concluding it in the exercise of its right to nullify the effect of the agreement by allowing the defendant to introduce proof in opposition thereto. And had the court refused to accept as conclusive proof of the allegations of the complaint the opinion of the expert and have allowed the defendant to introduce counter expert or other proof upon the question submitted to the arbitrament of the expert, such action on the part of the court could not upon any just reason be held to have constituted an abuse of its discretion in such case. It would be difficult to mark any reasonable line of distinction between the action of the trial court in that respect during the trial and its action, bringing about exactly the same result, in granting a new trial after a review of the case upon a motion for that purpose.

Our conclusion is that the order granting a new trial was but the result of the exercise of that power over causes and the action of the parties thereto which it is intended that trial courts shall possess and judicially dispense on all proper occasions in order that fair and impartial trials of issues of fact may be had. In other words, it has not been made to appear that the granting of the order was in excess of a sound judicial discretion.

The order is, therefore, affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 3, 1913.

(Civ. No. 994. Third Appellate District.-December 5, 1912.]


Corporation), Respondent, v. NATHANIEL J. BRIT


-DELIVERY OF POSSESSION_WRIT OF ASSISTANCE-TIME FOR PosSESSION—EXPIRATION OF REDEMPTION.—Where a decree foreclosing a mortgage provides for a commissioner's sale and deed, and adjudges that the purchaser or purchasers at the sale be let into the possession thereof, and that any person who may be in possession of the premises or any part thereof, or "who, since the commencement of this action has come into possession under them or either of them," deliver possession to such purchaser or purchasers, on production of the commissioner's deed for such premises, or any part thereof, and if such possession is refused, a writ of assistance shall forthwith issue, requiring the sheriff to place such purchaser in the quiet possession of the premises, only contemplates a period when such possession becomes lawful, after the expiration of the

period allowed for redemption of the premises. ID.-PROVISION FOR DELIVERY TO PURCHASER NOT REQUIRED IN DECREE.

Though it may be the usual practice to insert in a decree of foreclosure a direction that the premises be delivered to the purchaser at the sale; yet it is not necessary to do so under our system, and neither where such a clause is inserted or omitted from the decree can it add to or detract from the jurisdiction or power of the court to enforce its decree, and so put in possession, at the proper

time, the purchaser of the property at the foreclosure sale. ID.-PROVISION FOR WRIT OF ASSISTANCE.—There is no impropriety in

making provision in the decree of foreclosure of a mortgage for a writ of assistance to compel any party concluded by the decree to deliver the possession of the premises to the purchaser at the mortgage sale. Such a provision would obviously mean that the writ would issue only when the exigencies of the situation require it, and the purchaser is legally entitled to possession,

APPEAL from a judgment of the Superior Court of the City and County of San Francisco foreclosing a mortgage. W. M. Conley, Judge presiding.

The facts are stated in the opinion of the court.

Sullivan & Sullivan and Theo. J. Roche, for Appellant.

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