(dissenting). I am unable to concur in the conclusion that an oral stipulation made in open court and upon which a judgment is based is by force of sec. 3 of Circuit Court Nule V not obligatory upon another trial. The *267rule referred to was not intended to apply to oral stipulations made in open court during tbe trial, taken down by tbe reporter and acted upon by tbe court, for it is well settled that statutes or rules of court requiring stipulations to be in writing, in order to bind tbe parties, do not apply to stipulations made in open court. Lewis v. Wilson, 151 U. S. 551, 14 Sup. Ct. 419, 38 L. ed. 267; Savage v. Blanchard, 148 Mass. 348, 19 N. E. 396; Prestwood v. Watson, 111 Ala. 604, 20 South. 600; Hearne v. De Young, 111 Cal. 373, 43 Pac. 1108; Caldwell v. McWilliams, 65 Ga. 99; Welch v. Bennett, 39 Ind. 136; Carpenter v. Pirner, 107 N. Y. Supp. 875; Staples v. Parker, 41 Barb. 648; Corning v. Cooper, 7 Paige, 587; 36 Cyc. 1282; 44 Cent. Dig. 3054. Such stipulations, unless contrary to law or public policy, are binding, and may even be enforced by tbe court on its own motion, since it is in a sense a party thereto.
I am further of tbe opinion that when in an ejectment case it is stipulated that plaintiff’s tax title is good as to some of tbe parcels in dispute and invalid as to tbe remainder there is no room for argument as to bow judgment shall go, and therefore the ground of tbe decision in Hewitt v. Wis. River L. Co. 81 Wis. 546, 51 N. W. 1016, does not apply to this case. Such stipulations as to title, unless a party is relieved therefrom, ought to be construed to be an effectual waiver of tbe right to a second trial, especially where, as here, the parties have subsequent to judgment acted upon it, and plaintiff has thereby lost its right to stand upon the title it had when the action was begun. Speaking of an oral stipulation made in open court in Savage v. Blanchard, 148 Mass. 348, 19 N. E. 396, the court says:
“The present plaintiff comes into court relying on a judgment obtained in consequence of the order of the court which was procured by the agreement in question, and he cannot repudiate the agreement while he takes the benefit of its consequences.”
Much less should the defendants here be heard to question *268the validity of the judgment obtained by reason of tbe stipulation entered, into, since by means of it, through the quitclaim deed, they have shorn the plaintiff of the means of contesting that part of the judgment favorable to the defendants.
Marshall and Barwes, JJ. Wo concur in the foregoing-dissenting opinion of Mr. Justice Viwje.