This is an appeal by defendant from a judgment in favor of the plaintiff. The judgment is the result of a controversy submitted without action under section 9872 et seq., Revised Codes. The agreed facts show that plaintiff was the sheriff of Silver Bow county from January, 1931, until January, 1939. During that time he incurred mileage by traveling in the performance of his duties, and presented claims against the county therefor from time to time. The claims were presented in some cases for 7 cents and in others for 8 1/2 cents per mile. The claims were approved by the county auditor and allowed and ordered paid by the board of county commissioners. Nearly a year after plaintiff retired from his eight years in office he presented additional claims for mileage aggregating $16,528.87. These claims were for mileage for the same services covered by the previous claims which had been allowed and paid, but sought the difference between the 7 and 8 1/2 cents per mile and 10 cents per mile. If these additional claims are allowed and paid, plaintiff will have received 10 cents per mile for all mileage. The additional claims were made separately for each year and allowed by the county auditor, but disallowed by the board of county commissioners. Thereupon plaintiff appealed to the district court, where the cause was submitted on an agreed statement and without any pleadings.
It was stipulated that "all of the items in said claims and each of them for mileage are proper and just charges against Silver Bow county, Montana." It was also stipulated that the items were not outlawed under the laws of the state of Montana, and that in all other respects the "claims and the amount thereof are proper charges against Silver Bow county, Montana, and that the same are in proper, legal form, and itemized and verified as provided by the laws of the state of Montana." *Page 240
Pursuant to this stipulation the court entered judgment in[1, 2] favor of the plaintiff. Defendant perfected this appeal from the judgment. Plaintiff has made a motion to dismiss the appeal upon several grounds, one of which is "that it affirmatively appears from the transcript on file herein that the judgment or order appealed from was entered by the lower court by consent and agreement of the parties to the proceeding, and that the appellant herein is not a party aggrieved thereby within the meaning of section 9730 of the Revised Codes." This motion must be sustained.
"Consent to a judgment is a waiver of any errors in it, and it is therefore an established rule that a judgment or order will not be disturbed on an appeal prosecuted by a party who expressly consented to the making of it. Under such circumstances the appellate court will not consider the appeal at all but will dismiss it." (Cal. Jur. 878.)
In Schmidt v. Oregon Gold-Mining Co., 28 Or. 9,40 P. 406, 408, 1014, 52 Am. St. Rep. 759, the court said: "Consent excuses error, and ends all contention between the parties. It leaves nothing for the court to do but to enter what the parties have agreed upon, and, when so entered, the parties themselves are concluded. From such a decree there is no appeal [citing cases]." (And see 4 C.J.S., Appeal and Error, sec. 213; InteriorSecurities Co. v. Campbell, 55 Mont. 459, 178 P. 582;Corby v. Abbott, 28 Mont. 523, 73 P. 120; Board of Com'rs v. Gilliam, 17 Mont. 333, 42 P. 852; Hanrahan v.Andersen, 108 Mont. 218, 90 P.2d 494.) This is not to say that there is no appeal from a judgment, but that the consent to the judgment is a waiver of the right to object to it by appeal or otherwise.
The defendant contends, however, that it was beyond the power of the board of county commissioners to give its consent to the matters covered by the stipulation. With this we do not agree.[3] The county commissioners are the ones to whom claims against the county must be presented in the first instance. They are given express authority to pass upon the *Page 241 claims. This being so, they stand in somewhat the same situation as an executor or administrator. The rule is that "an executor or administrator can, in the exercise of his judgment, pay a debt proved against the estate. If he may pay the debt, it is difficult to see why, when suit is brought, he may not agree that judgment may be taken. Such a view is amply sustained by the authorities [citing cases]." (Brown Bros. v. Brown,56 Conn. 249, 14 A. 718, 720, 7 Am. St. Rep. 307.)
Defendant further contends that in any event it is beyond the[4] power of the board of county commissioners to waive compliance with section 4605, Revised Codes, requiring claims against the county to be presented within a year after the last item accrued. It takes the position that failure to comply with that section of the statute defeats the claims (save the one covering the last year) as a matter of law, and that the county commissioners may not stipulate that they are proper charges against the county if there were failure to present the claims within the statutory time; and the county contends that the stipulated facts show that the claims were not presented within the time contemplated by section 4605. There are circumstances here which make the general rule contended for inapplicable.
Section 4605, requiring all claims to be presented within a year after the last item accrued, is a provision enacted for the benefit of the county commissioners to enable them to investigate the merits of claims while evidence is available from which their merits may be inquired into. That purpose was fulfilled when the claims were originally presented. They were then investigated and found to be legitimate and were allowed. The county commissioners then determined the fact that the work had been done by the sheriff necessitating the travel. The legal effect of the additional claims amounts to but amendments of the prior claims to the extent of asking for the difference between what the sheriff had received and the 10 cents *Page 242 per mile to which he was entitled under the law. (Sec. 4885, Rev. Codes.)
We agree with the statement of law made by the supreme court of Idaho in Drainage District No. 2 of Ada County v. AdaCounty, 38 Idaho 778, 226 P. 290, 291, where it said: "The phrase `claim against the county,' as used in the above statutes, applies only where there is something for the commissioners to pass upon, involving the exercise of discretion on their part; that is to say where, under certain circumstances, they might be justified in rejecting the claim. It does not apply to a case where the liability and its extent are so clearly fixed by positive provisions of the statutory law that the question becomes purely one of law, leaving nothing for the commissioners to pass upon, and no room for the exercise of discretion. Such are the cases presented by the causes of action in the complaint. Whether or not cross-appellant is entitled to recover on them, or any of them, depends upon the decision of a clear-cut question of law, involving the application of statutes to a definite state of facts, and leaving no room for discretion. * * * We therefore conclude that these causes of action are not based upon claims within the meaning of the statutes requiring presentation to the board of county commissioners."
The claims in question here were not such as required presentation to the board of county commissioners. This being so, we pass to the point whether it was proper for the board of county commissioners to stipulate that none of the items were[5] outlawed. The statute of limitations is a personal privilege which may be waived. It must be pleaded, in order to be[6] available as a defense. The county commissioners have the right and power "to direct and control the prosecution and defense of all suits to which the county is a party." (Sec. 4465.14, Rev. Codes.) It seems clear that the board could decline to plead the statute of limitations whenever it was of the opinion that facts showing the bar of the statute could not be established. This was the implication of the holding *Page 243 in Hicks v. Stillwater County, 84 Mont. 38, 275 P. 296. This is the rule as to municipal corporations. (37 C.J. 721, note 19.) And we think the same rule applies to the county through its board of commissioners. If the board could thus waive the statute of limitations by declining to plead it, then it seems equally clear that it could expressly stipulate that the claims are not barred. This is not the same as stipulating to a conclusion of law, but is equivalent to a stipulation that the facts are not such that the plea of the statute of limitations would be available.
It will not do for the county commissioners, whose duty under the law is to pass upon claims against the county and who have the power to direct and control the prosecution and defense of all actions to which the county is a party, to trifle with the court by stipulating away all defenses, if any exist in favor of the county, and then contend that the court was in error in taking them at their word. They are the ones who speak for the county and the county is bound by any judgment rendered pursuant to their consent.
Since defendant is not an aggrieved party within the meaning of section 9730, Revised Codes, the motion to dismiss the appeal must be and is granted.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE ERICKSON and ANDERSON concur.