(dissenting.) I think the stipulation entered into between the attorneys should be so construed as to protect the rights of the appellants in this motion. It is conceded that-the motion to remove the default was seasonably made and the respondent’s attorneys did not urge the enforcement of the time limit. The trial court abused its discretion in insisting upon the violation of the stipulation. The stipulaton states:
“Have agreed that any1 order entered in said proceedings shall be entered and filed as of said date of October 7th.”
On second thought, of course, counsel will concede they could not control the entering' or filing of papers. The trial court says:
“The truth and public interest demand that public documents be filed and entered the day the act occurs, but assuming the intent of the stipulation was'that plaintiff would waive the objection that the motion was hot passed upon, within the year, could that be done so the court could make a valid order after the time had expired? I think not. While one may waive the advantage of a law solely for has benefit, this statute, however, enacts a rule of public policy that litigation shall seasonably cease. Judgments are commonly the bases of titles, and they should early be at rest. Parties, therefore, ought not to be permitted to controvert this *567statute ‘by private agreement.’ I do not think this court would have any right to disturb the judgment.”
The highest duty of the court' is to justice. Justice cannot be accomplished by ignoring the stipulation of attorneys and refusing to open up a' defaulted judgment of $43,500, which denies the right t'o defend on the ground of fraud and want of consideration. A portion of this judgment involves the appellants’ homestead.
I think the order setting aside the default should be entered, and that appellants’ should, upon payment of reasonable costs, be permitted to urge on the trial/ their defense.
Note. — Reported in 200 N. W. 107. See, Headnote (1), American Key-Numbered Digest, Judgment, Key-No. 153 (1), 23 Cyc. 912; (2) Appeal and error, Key-No. 172(1), 3 C. J. Sec. 584.