In this case a re-hearing was granted because it was asserted that the stipulation of facts contained in the record controlled in some particulars in which such stipulation was contradictory to the pleadings.
An examination of the stipulation referred to shows that such stipulation was entered into only for the purpose of stainding "in lieu of taking testimony" which would otherwise have been required in support of the issues made by the pleadings. We are unable to recognize anything in the stipulation of facts relied on which supports the contention of the appellees that where there is a conflict between the effect of admissions made in the pleadings and said statement of facts, that the statement *Page 1391 of facts is to have the effect of standing in place of and over-ruling the effect of the pleadings. Such would not be the normal effect of a stipulation made in an equity suit which was expressly limited, as the one in this case was, to standing "in lieu of taking testimony." In other words, the stipulation by its terms operates as proof of the facts admitted to the extent that such admitted facts are competent as evidence received by consent under the issues made by the pleadings, but there is nothing to show that a conflict between the pleadings and the evidence so received, is not to be given the same effect by the court, that would be given in cases where the pleadings and ordinary proof were contradictory to each other.
We are unable to find anything in the record which shows that the hearing and determination in the court below was to be made upon an agreed statement of facts, such as was the case in City of South Jacksonville versus Jacksonville Traction Company, No. 5993, decided June 26, 1931, 49 F.2d page ___, U.S. Daily August 19th, 1931, page 6.
A distinction exists between a case which is agreed to bedecided by the Court on an agreed statement of facts after the issues are made up, and a case where the only office served by an agreed statement of facts is that the agreed statement shall be received "in lieu of taking testimony." Undoubtedly when a case is submitted to the Court on an agreed statement of facts, all questions of the sufficiency of the pleadings, and their legal effect, are waived, the want of an answer becomes immaterial, and no findings of fact are necessary to a review, as was held in the leading case of Saltonstall vs. Russell,
But when an agreed statement of facts is entered into, as in this case, merely as a substitute for the "taking of testimony," and the case is submitted for decision not only on such agreed statement of facts, but on the pleadings and the agreed statement of facts, the effect of omissions and admissions in the pleadings is not disturbed by what may be contained in the stipulation of facts, and the court is warranted in giving the pleadings their ordinary effect in determining the equities, notwithstanding what may be contained in the stipulation of facts filed "in lieu of taking testimony." The decree is reversed on re-hearing for the reasons stated in the first opinion filed in this case.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.
BROWN, J., dissents.
