dissenting.
If the majority opinion could be construed in the light of some pertinent parts of the record, I believe the conclusion of the majority of the court would be, in effect, to reverse the judgment, remand the cause, and direct that the court reinstate the complaint and enter the judgment prayed for for whatever value it might have as further evidence, if introduced as such, against the Warrens.
The stipulation between the original plaintiffs and some of the defendants was one which the parties thereto had the absolute right to make and as between such parties, in the absence of fraud or deception, would be of binding- effect. Their interests alone are affected and they have had the authoritative right to have such interests reduced to judgment form if requested, and such action was expressly provided for in the stipulation. It was the duty of the court to enter such judgment when it would be a disposition of the action between the parties involved and not illegal. Any interest of the remaining defendants would not be affected thereby, because their rights were not involved as between the parties to the stipulation. It was just as erroneous for the court to refuse to enter this judgment as it would have been to have refused the admission of the stipulation as between the parties thereto, or the admission of their testimony to the same effect.
The issue as to the Warrens, the remaining defendants, was yet to be determined. Because counsel for plaintiffs might have insisted that such a judgment, when entered, was prima facie evidence against the Warrens, the trial court was not bound by counsel’s position. The court could accept it as such, or accept it for whatever it might *307be worth in further presentation of the case against the Warrens. The court in the majority opinion states that, “judgment should he entered ultimately as provided hy the stipulationIf that be true, then the dilemma was not eased, but a cloud was immediately thrown over the situation by the following statement of the court, “In this form of judgment prayed by Mr. Caldwell, it makes it very plain if we grant that judgment as between the original parties, we reform the conveyances without, in my opinion, giving the defendants Warren an opportunity to be heard.” The Warrens were present and represented by competent counsel and they could have proceeded in their defense, if any, after a judgment was entered on the stipulation. They could have alleged and shown fraud and deception or collusion, and the issue then made would have been squarely before the court. This they did not do, and the court’s majority opinion fails to disclose that they are not in this court defending a temporarily favorable judgment in their favor.
The record clearly discloses that the Warrens made an effort to establish their untenable proposition to the effect that the plaintiffs Eads and wife negligently and carelessly took possession of the Marshdale Lodge under their deed; that they thereby attempted to assert claim to lot 106 as against the Warrens; and that the Warrens bought lots 104, 105 and 106 in good faith as innocent purchasers for good value the three lots for the purpose of the erection and maintaining a cottage camp when they filed their objections to plaintiffs’ motion for judgment against Helme, Hastings and Hastings on the stipulation. Immediately upon filing the objections, which contained the above allegations, plaintiffs filed a motion to strike those allegations from the objections, and alleged therein that such objections contained in paragraphs four and five were res judicata by virtue of the memorandum opinion filed by the court on the pre-trial conference, and concluded the motion by quoting from that memorandum opinion as follows: “Since the pre*308trial conference in the above entitled cause the court has given further consideration to matters of law in connection with the case and has concluded, as a matter of law upon the facts admitted at the pretrial conference and admissions made pursuant to the Rules of Civil Procedure and the pretrial conference that the defendants Warren are not innocent purchasers of lot 106 for value without notice, and, therefore, that there is no issue for trial in that respect.”
This motion to strike, containing the quotation from the trial court’s memorandum opinion, was squarely before the court, the court sustained the motion, and such objections were stricken. It is true that the record before us does not contain this memorandum opinion, which was entered after the pre-trial conference, but it cannot be denied that the Warrens did present such question to the court which was adversely received. In the majority opinion the court fails to note this significant happening in the preliminary courses of the trial, and this was not a part of the pre-trial conference, by which the majority opinion rightfully says that such issue could not be determined against the Warrens by an order made on pre-trial conference.
That the trial court was conscientious in its mistaken effort to protect the interests of the Warrens cannot be denied; however, the following statement of the court, which is set out in the majority opinion, clearly discloses the confusion in the court’s mind: “Our trouble is that our only difficulty, Mr. Caldwell, is the effect to be given this stipulation. That is the difficulty. The stipulation seems to me to be so unjust, and, shall we say, I wouldn’t want to say illegal, but let’s say unjust, in asking the Court to take as evidence this agreement between all the parties except the Warrens and then use that as evidence in granting this judgment.” Thus it definitely appears that the trial court insisted on denying the rights of the parties to the stipulation and in keeping the Warrens in the middle of the whole matter, where, they did *309not belong. The majority in the opinion says: “Entry of the requested judgment was temporarily withheld as a means of requiring the production of competent evidence against the Warrens in support of the allegations of the complaint.” If this was not competent evidence, then I fail utterly to distinguish between the competency and incompetency of evidence. It also is stated in the majority opinion, “The trial court did not like the prospect of giving to the stipulation, which was a hearsay instrument as far as the Warrens were concerned, a status in the form of a judgment which might conceivably be used against them to their disadvantage.” I wholly fail to understand the reasoning thus employed if the statement in the majority opinion, “and judgment should be entered ultimately as provided for by the stipulation,” is to stand. We must not overlook the fact that the Warrens did not plead a defense on the ground of fraud or deception or collusion. If the stipulation or contract was to be denied its full force and effect as between the parties thereto on account of its being hearsay as to outside parties, then the rights of litigants are left in a perilous condition. I do not contend that the judgment here asked on the stipulation is a judicial determination of any litigated right, but it is the solemn -disposition of the matters in litigation between the parties thereto, and when the court would allow it to go upon the record, it is nothing further than its consent to the acts of the parties involved.
Relying upon the record as made, which is before us, I cannot agree with the statement in the majority opinion, “It is clear from the record herein that the court did not finally and without qualification refuse to enter a judgment in accordance with the stipulation of the parties.” My position is fortified by the following statement of the trial court: “The thing I am objecting to, and I want the record to show it, is that I am requested to take a certain document as evidence. By so doing I am taking evidence from some parties without those *310parties subjecting themselves or appearing here for cross examination. On that basis I am going to sustain this motion to dismiss this case.” If that is not a final and direct refusal to enter the judgment, I am at a loss to know how it could be done more effectively. A dismissal of plaintiffs’ complaint was the most potent refusal that one could imagine.
There is no reason to consider the question of prima facie evidence as was done by the majority in its opinion. That question would arise only when the judgment, if it had been entered, was introduced and relied upon as being prima facie evidence. The next step would have been a question of evidence, but there is no question as to what kind of evidence the judgment would be until that point was reached, after its entry. What happened between Marsh, Eads and wife and Helme, Hastings and Hastings, was a matter of concern as between themselves, and it was the duty of the court to recognize their composition of the question as between them. When this was done, then the matter of what happened between Helme, Hastings and Hastings and the Warrens would be up for consideration. I am not saying that a judgment on the stipulation would be conclusive as against the Warrens, because they would be.free to attack the stipulation and judgment on the ground of fraud and collusion.
In conclusion it is to be noted that there is no semblance of a claim of fraud or collusion in this case, although the action of the trial court would indicate that there might be a presumption to that effect.
For these reasons, I am impelled to dissent from the majority opinion.