Page:Federal Reporter, 1st Series, Volume 8.djvu/94

80 FEDERAL REFOBTER. �on file, and therefore there ought not to have been a verdict for the defendant. But it is admitted that there was a verbal stipulation bet'ween the counsel for the plaintif and defendant to the effect that this case should abide the resuit of the case against Humason ; and this stipulation was admitted by the district attorney in open court when the order was made, although he protested that he ought not to be bound by it, as it would not have been made if he had thought the Humason Case would have gone off on a technical failure of proof of the execution of the bonds, as it did. �But the court ruled that if the stipulation was admitted, the case must follow the disposition of the Humason one, and thereupon the order tvas made without other or further objection; but it then ap- pearing that the defendant had failed to answer, and it being sug- gested by the court that the record would show error in the proceeding if there was a verdict for the defendant without an answer contro- verting the material allegations of the complaint, an order was made, without objection, giving the defendant leave to file such an answer, m of some day between the filing of the complaint and the trial, which he did, or attempted to do^ as of February 16th. �Objection is, taken to this proceeding as being irregular, but in what the irregularity consista is not apparent. The foundation of it was the stipulation of the parties, and when that was admitted and its binding effect considered, what followed wa? a mere matter of form, and even had the consent of the parties at the time. �It might have been as well to have waited until final judgment had been given in the Humason Case, and if that was in favor of the de- fendant, then to have moved to dismiss this one. But, in some form, the defendant was entitled under that stipulation to have bis case share the fate of the one against Humason. �But admitting the regularity of the proceedings thus far, counsel for the plaintiff insists that the verdict ought to be set aside in this case because the answer of the defendant does not controvert or deny the execution of the bonds, but in eiiect admits it. �The answer of Savage contains a deniai of the execution of the bonds "except as hereinafter stated," and then "admits that at the dates mentioned he did, along with his co-obligors mentioned, make a bond to the plaintiff," but does not "remember" the penalty or condition thereof. �It may be admitted that this is not a good deniai of the execution or condition of the bond, but it is a question whether it is not suffi- cient to prevent judgment for want of an answer. If the plaintiff ��� �