Thomas v. United States

*283DISSENTING OPINION

Lenroot, Judge:

I regret that I feel compelled to dissent from the •decision of the majority in this case.

I agree with the majority that, so far as this particular case is concerned, its conclusion will result in exacting a rate of duty upon the merchandise involved that should have been assessed by the collector .in the first instance, but I do not think that this court is warranted in bringing about this result unless the same can be done by the application of well-settled principles of law.

The majority finds that in this case there was an abuse ,of discretion by the lower court in denying a motion for rehearing herein. It is therefore important to consider what is meant by the phrase “ abuse ■of discretion.”

In the case of People v. New York Central R. Co., 29 N. Y. 418, it was held that the exercise of an honest judgment, however erroneous it may appear to be, does not constitute abuse of discretion, but that the question is, Has the result arrived at been produced by exercise of an arbitrary and unlawful discretion?

In State v. Griffin, 100 S. C. 331, 84 S. E. 876, it was held that the abuse of discretion that authorizes an appellate court to reverse denial of a new trial implies not merely an error of judgment, but error of judgment that is plain.

In the case of In re Horowitz, 250 Fed. 106, it was held that an abuse of discretion means an unreasonable departure from considered precedents and settled judicial custom which is error of law.

From the authorities that I have been able to examine, I think that it may be said that in order to constitute an abuse of discretion it must appear that an error of law has been committed by the lower court in this case. The majority finds that such error is manifest; to this I can not agree.

The attorneys of record in the lower court compose a firm of the very highest standing. There is no affidavit and no showing in the record by any of these attorneys that they or any of them were not aware of the' filing of the stipulation. The only showing in the record upon which the motion is based is an affidavit by an employee of this firm, who is a member of the bar of the lower court. This affidavit does not state that this employee was in sole charge of this case for the firm. While the affidavit does state that an error was made in not claiming paragraph 1114 in the protest, it does not state when this error was discovered; nor does it state whether it was a clerical error or an error of j udgment. While it may be inferred from the affidavit that the error was discovered after the stipulation in question was signed but before it was filed, it certainly does not appear that such error was realized by any of the attorneys of record *284or any of their employees prior to the making of the stipulation here in question. The affidavit does not state for what purpose the motion is made, although I think it may be inferred from the body of the affidavit that the purpose was to enable appellants’ counsel to move to amend the protest. Nothing herein should be construed as reflecting in the slightest degree upon the credibility of the maker of the affidavit.

To my mind, the fundamental error of the majority is that it assumes and, I think, in effect holds, that where the parties to a lawsuit deliberately enter into a stipulation, without any agreement that the filing of that stipulation shall be withheld, it is at the option of the party who may have manual possession of the stipulation either to file it or withhold it, and the majority opinion assumes that after a written stipulation is entered into it is improperly in the record if filed by the party.having possession of it when he intended to withhold such filing until some future time.

This brings us to a consideration of the nature of a stipulation entered into relative to a proceeding in court. The authorities are uniform that a stipulation is an agreement of an attorney entered into for the purpose of binding his client, so far as he may do so. Campbellsville Lumber Co. v. Hubbert, 112 Fed. 718; In re More’s Estate, 143 Cal. 493, 77 Pac. 407. It is also well settled that a written stipulation may be enforced, though not filed, unless forbidden by law. Wall et al. v. Mines, 130 Cal. 27, 62 Pac. 386.

When the stipulation here in question was made, the Government had just as much right to file it as did appellants, and the mere fact that appellants may have had manual possession of the stipulation and the Government did not have a duplicate of it did not affect the right of the Government to have the stipulation filed forthwith after its signing. I have no doubt that the next day after the stipulation was signed the Government might have demanded from appellants that they file the stipulation and that, if appellants failed or refused to do so, the court could have entered an order requiring that it be filed. It seems to me that it would be a strange rule indeed if, when parties to a suit enter into a stipulation, it may be filed or not at the option of one of the parties. So in this case, assuming that the stipulation was inadvertently filed by appellants, when filed, the Government had a right to stand upon it and to insist that its terms be carried out, which the Government has done.

The majority opinion treats said stipulation as a unilateral agreement for the benefit of appellants only. It is not such an agreement but is equally binding upon both parties. When the stipulation was made the Government had the same rights as had appellants, and appellants had no greater rights than had the Government. It will not be contended that, if the Government attorneys had had manual *285possession of this stipulation, they could, on behalf of the Government, at their option withhold the filing of it. The view of the majority is, in effect, that appellants could bind the Government by filing the stipulation, or relieve themselves from the full effects of the stipulation by withholding it after the stipulation was made.

The next question is as to the effect of the stipulation when filed. As I read the opinion of the majority, it is to the effect that, notwithstanding the parties have deliberately stipulated that upon the agreed statement of facts the cause should be submitted, nevertheless the court below could not then consider the case for final determination, but must first place the case upon the trial calendar and give 10 days’ notice to appellants and the Government of the day and hour set for the call of the calendar. This seems to me absurd; when parties stipulate that the cause shall be submitted to the court, why go through the useless formalities of placing the case upon the trial calendar, the clerk of the court sending notices to the parties, and the court calling the calendar for the purpose of fixing a date for trial when it has already been agreed that the case be submitted without trial? In my judgment, the-effect of. the majority opinion is that hereafter, where parties stipulate that a case may be submitted to the court, it can not be so done unless the court goes through all the formalities as if such stipulation had not been made. • It is clear to me that when parties stipulate that a case shall be submitted it means that it shall be submitted for decision upon the pleadings as they then stand and upon the facts agreed upon, the right to take testimony, amend the pleadings, or make other motions with reference thereto being waived, and the court may at once, upon the filing of such stipulation, take up the case and decide it.

When this stipulation was made the court had complete jurisdiction of both the parties and the subject matter; this is not denied, It seems clear to me that when the parties agree to submit a cause to a court their intention is to refer it at once to the court for disposition.

If, in this case, there had been any showing of an agreement to withhold the filing of the stipulation, or if there had been any showing that the stipulation was inadvertently made and that appellants desired to be relieved from its effects for that reason, a very different question would be presented, but there is no such showing in this case. Under these circumstances I can not see how the lower court can be charged with an abuse of discretion in denying the motion for rehearing.

The majority opinion states:

The primary duty of the courts of the United States is to do justice under the law. A failure in this regard, the opportunity being afforded, can never be defended, and any attempt to do so must of necessity be based on a denial of the existence of those fundamental principles of justice upon which courts are founded.

*286With this I am in full' accord, but it is no part of the duty of a court to relieve parties from stipulations deliberately made, without showing of reasons for such relief, and if the court below was of the opinion that, inasmuch as there was no proceeding of any character by appellants' to relieve themselves of the stipulation deliberately made, and denied the motion for that reason, as it may have done, we can not say that it was an abuse of discretion to deny the motion for rehearing. Furthermore, it very frequently happens that this court, in the exercise of its customs jurisdiction, finds that the collector has erred in his classification and assessment of merchandise for duty, but, because the importer has not made a proper claim in his protest, this court is without power to give him relief. This is because, where the importer has not made a proper claim, he has by his own omission put himself in a position where, under the law, relief can not be given him; and so, if an importer deliberately makes a stipulation with reference to a pending cause under which he can not be given relief that he would otherwise be entitled to, the lack of remedy should not be attributed to the courts but to the act of the party himself.

As the record does not show any agreement upon the part of the Government that the said stipulation should be withheld from filing, and does not show or claim that said stipulation was inadvertently made by appellants, even assuming that in all other respects the record made was sufficient to require the court to grant the motion for rehearing, the absence from the 'record of the essential facts last above indicated, in my opinion, precludes us from holding that there was an abuse of discretion upon the part of the lower court in denying the motion for rehearing.

It is my opinion, for the foregoing reasons, that it was no abuse of discretion for the lower court to deny the motion for rehearing in this case, and its-judgment should be affirmed.