It is the duty of a district judge to prevent his court being used as the vehicle for raids on the public treasury by stipulation or otherwise. The learned trial court, after mature consideration, set aside the order confirming the reports of commissioners allowing damages of more than ten times the *Page 511 amount assessed by regularly appointed commissioners, which award under stipulation had been set aside by another judge. The question for review is whether there were such irregularities at and before the entry of the judgment as, under the provisions of Comp. St. 1929, § 105-846, justified the action of the court.
These commissioners were selected "according to the plans suggested or set forth in their stipulation filed herein." It is true that they were named in the order of the court approving the stipulation and setting aside the award of the first commissioners, but their selection was not the deliberative act of the court, but the act of the parties themselves, or rather the attorney representing appellee and the appellant. The court abdicated its judicial function at the request of counsel. Comp. St. 1929, § 43-103, makes it the duty of the court to appoint disinterested commissioners in this special proceeding. Among the important consequences of a failure to select disinterested commissioners, not the least is the tendency to bring the administration of the law into disrepute. A judgment entered upon a grossly excessive award under a valid stipulation, without notice of hearing or opportunity to object, is irregular. Comp. St. 1929, § 43-106, provides: "Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall forthwith notify the attorneys of record for all of the parties to such proceeding. * * * The report of such commissioners may be reviewed by the court in which the proceedings are had on written exceptions filed in the clerk's office, by either or any party within thirty days after the time of the filing of such report in the clerk's office; and the court shall make such order therein as right and justice may require. * * *"
The report of the commissioners was not filed in the clerk's office until after the judgment had been signed. It was signed in another county and, so far as the record shows, no notice was given to appellee's counsel of the time and place of the presentation of the report of the commissioners and stipulation to the court. Apparently, the proceedings were upon the theory that "a stipulation for a judgment is a consent to the entry of the judgment" (Morrow v. Learned, 76 Cal. App. 538, 245 P. 442,443), and that judgment followed automatically a valid award. The judgment states:
"Now, at this time the report of the commissioners W.B. Rector, H.K. Grubbs and Isaac Stockett, heretofore appointed by this court to assess the damages which the above named defendant and owner of the lands involved in this proceeding has sustained by reason of the appropriation of his land for the purpose of a right of way for a highway in and across the same, came on to be heard and it appearing to the court that said commissioners above mentioned have been duly appointed by the court under a stipulation filed by the parties hereto, in which said stipulation the said parties agreed to accept the assessment of damages made by said commissioners and agreed that they *Page 512 would not except to such report or appeal therefrom, and the court being advised in the premises finds:
"That the said report of the commissioners above named should and ought to be confirmed."
Surely this is not a judgment after trial. Rather the court lent its machinery at the request of counsel that the award might become a judgment pursuant to the stipulation. In the case at bar, the amount for which judgment would be asked was not known at the time the stipulation was signed, and we should not presume that upon the signing of the stipulation and the naming of one commissioner, the attorney of appellee retreated from the field and burned the bridges behind him so that appellee would have no part in or knowledge of the further proceedings until demand was made for the payment of the judgment. If appellee or its attorney had had knowledge of the contents of the report of the commissioners — and we cannot presume that they had such knowledge where the record is silent and the provision of the statute as to notice was not complied with — the attention of the court would, no doubt, have been called to the fact that the amount fixed as damages was more than ten times that assessed by the regularly appointed commissioners. In the companion case, Board of County Com'rs v. Gardner, 37 N.M. 514, 24 P.2d 1104, the amount fixed by the first commissioners was $70, while the award of the last commissioners was $900. Or is it the theory that the assistant district attorney tied the hands of the board of county commissioners by the stipulation so that his client could not be heard to object, however unjust the award?
Counsel for the county may not stipulate away fundamental procedure designed to give his client an opportunity to bring to the attention of the court the fact that a grossly excessive award has been made, although no actual corruption is shown. Such practice would be "inconsistent with the full and impartial course of justice." 60 C.J. 49.
The appellee appeared by special counsel after the judgment had been entered and moved the court to vacate the stipulation, report, and judgment, and after reciting the former proceedings, said:
"That the said stipulation and the said order filed May 21st, 1931, and the said report of commissioners filed May 28th, 1931, and the said order confirming said report and giving judgment against the Plaintiff, filed May 28th, 1931, ought to be vacated, set aside, and held for naught, for the following reasons, to-wit:
"(a) That the report of the first commissioners appointed, to-wit: Commissioners Wm. Troup, M.C. Garr, and Lee Watkins, was fair, equitable and just, and no reason has been shown, nor can be shown, why said report should be set aside, by stipulation or otherwise.
"(b) That the damages assessed by the Board of Appraisers last named, to-wit: The sum of Nine Hundred No/100 ($900.00) *Page 513 Dollars, is unconscionable, excessive, unreasonable, unjust and inequitable.
"(c) That said judgment and the amount of damages determined therein for which judgment was given against this Plaintiff, is unconscionable, excessive, unreasonable, unjust, and inequitable, and should be vacated, set aside, and held for naught.
"(d) That the Plaintiff is a Board representing the County of Quay, a body politic; that the Plaintiff Board did not consent to such stipulation, or to any of the proceedings hereinbefore mentioned following such stipulation."
Comp. St. 1929, § 39-112, enacted in 1875, is pointed to as conferring power upon the district attorney to take the action followed in this case. This territorial statute conferred broad powers upon the district attorney, but the later statute, Comp. St. 1929, § 64-211, enacted in 1921, provided that rights of way shall be acquired by boards of county commissioners "by payment of a price agreed upon by the owner and the board of county commissioners, or by the exercise of the power of eminent domain in the manner provided by law for acquiring property for public use."
Ordinarily, the power to confess judgment against a municipality is vested in the officials with capacity to contract and liability to pay, but even then the judgment must be a just one and one which by law its officers have a right to assume on behalf of the municipality. It is not believed that it was the intention of the Legislature to take away from the board of county commissioners the power and authority to contract with respect to the acquiring of a right of way and to vest it in the district attorney upon the filing of the complaint in a condemnation proceeding.
The late Chief Justice Parker, referring to Comp. St. 1929, § 39-112, in State v. State Inv. Co., 30 N.M. 491, 239 P. 741, 746, said: "* * * and evidently contemplates an investigation of the facts * * * by the court."
Appeals from judgments on stipulation are usually dismissed on motion. Coolsaet et al. v. City of Veblen, 55 S.D. 485,226 N.W. 726, 67 A.L.R. 1499 and annotation. Therefore, if relief is to be had in this class of case, it must be in the nisi prius court.
In Mills v. Board of Com'rs et al., 35 Idaho, 47, 204 P. 876,879, the court quotes from Clyne v. Bingham County, 7 Idaho, 75,60 P. 76, language which seems appropriate here: "County attorneys cannot limit the jurisdiction of the district court or of this court, by stipulation or otherwise, or relieve either of said courts of duties enjoined by positive statute. * * * It is not a matter between the county attorney and the respondent. The public, the taxpayers — those who `bear the burden in the heat of the day' — have some rights in the premises, which cannot be frittered away by the county attorney." See, also, Cook v. Mills Ranch-Resort Co., 31 N.M. 514, 247 P. 826.
We need not concern ourselves with the *Page 514 question as to which irregularity moved the court to set aside the judgment so long as the ruling was right.