(dissenting).
In this condemnation action the court entered a judgment vesting title to the real estate in the city. Then in accord with its findings of fact and conclusions of law, which found the value of the real estate to be $70,000 and the value of the immovable fixtures to be $4,982, it entered a judgment against the city in favor of Nauseds for $74,982 as just compensation for all damages, taking and appropriation of the property. In a separate paragraph it was adjudged that the defendant Sturdevant (who defaulted and did not appear) and defendant Sioux Brake and Equipment, Inc. “take nothing herein.” In other words, not participate in the award.
In that posture, Sioux Brake appealed by a notice of appeal referring to the judgment but limited that appeal as follows: “that said appeal is not taken from the whole Judgment, but only from that part or portion of the Judgment adjudging that the defendant, Sioux Brake and Equipment, Inc., take nothing.”
No question is raised or can be raised by anybody with reference to the amount of the award; it must stand, and even this court cannot reverse or alter that part of the judgment. Only part of the judgment is questioned and is in issue, and that is the division of the award between Nauseds and Sioux Brake; the city is not an adverse party and cannot be adversely affected by the reversal or modification of the judgment appealed from. An adverse party means one adverse in fact and law and not a party merely listed in the title who has no interest in the outcome.
The stipulation was not signed by any of the actual parties but only by their attorneys, including the attorney for the city. The record before this court does not show the city attorney had authority to bind the city by the stipulation of July 13, 1972. At that time the action had been terminated by the judgment. See Northwest Realty Co. v. Perez, 80 S.D. 62, 119 N.W.2d 114. If there is any liability of the city it is based on the stipulation and not under and by virtue of the judgment. That being the record, I dissent.
I am authorized to state that Justice WOLLMAN joins in this dissent.