¶1(dissenting).
¶2Conclusion of law No. IV reads:
“That the defendant will pay to the plaintiff on the entry of the decree herein the sum of five thousand dollars ($5,000.00), but plaintiff is not entitled to any other right, title, interest or distribution in or of defendant’s property of any kind or nature.”
¶3And No. VI reads:
“That except as herein set forth, neither party shall have any right, title or interest against the other party or against the estate of the other party.” (Italics supplied.)
¶4Paragraph VI does not follow the wording of the stipulation. It seems to me that what defendant is doing here is asserting a right against plaintiff which is contrary to paragraph VI. The judgment of divorce (paragraphs 4 and 6) dated October 4, 1950, follows the wording of the above-quoted paragraphs.
¶5*429After the judgment had been entered and on November 15, 1950, defendant moved the court for an order directing plaintiff to return and pay to defendant the $900 in currency belonging to him. The court in denying the motion stated that it appeared to the court—
“that under the advisory stipulation of settlement between the parties, introduced into evidence in the trial of the above cause of action, and under the findings of fact, conclusions of law and order for judgment of this court in this cause, and the decree of this court entered in the cause accordingly, the plaintiff is entitled to retain the aforementioned sum of $900 as her own property and that the defendant is not entitled to the return thereof as his property.”
¶6It is from this order that defendant appeals.
¶7It must be admitted that in the wording of the stipulation clarity was not attained. The parties agree that during the negotiations which resulted in the stipulation nothing was said about the $10,000 claim which plaintiff had previously asserted against defendant or the $900 involved here. Why these matters were not discussed, and why the $900 item particularly was not specifically excluded from the stipulation is not understandable if either party desired his or her claim to survive the judgment. It is apparent from the wording of the court’s order that in its opinion the parties through their stipulation intended to adjust all financial and property matters between them. And there can be no doubt that the court intended to dispose of all such matters by paragraph VI of the conclusions of law.
¶8Defendant asserts that where there is ambiguity in the terms of a decree the court may resort to the record to find the proper meaning ; that the record here shows that the court did not make án independent determination of the property rights of the parties, but intended to decree what the parties stipulated; that therefore the meaning of the decree is to be learned from a finding of the intent of the parties. The parties disagree as to what they intended. Plaintiff claims that it was intended that all matters between them be adjusted by the stipulation, while defendant claims that it was *430not intended that the $900 item should be covered by the stipulation. In Simons v. Munch, 127 Minn. 266, 269, 149 N. W. 304, 305, we said:
“… True it is, that where the language of a judgment or decree is clear and unambiguous, neither the pleadings nor the findings or verdict, nor matters de hors the record may be resorted to to change the meaning. It must stand and be enforced as it speaks. But when the meaning is obscure, doubtful or ambiguous, the judgment roll or record may always be examined for the purpose of rendering certain that which may be open for construction or interpretation.”
¶9But to say that the record may be resorted to in order to determine the intent of the parties is not to say that the intent of the parties is the intent of the court. Here, the court did not use the terms of the stipulation in its conclusions of law. Where the stipulation states (par. IV) “in the property of the other” party, the conclusions of law (par. VI) says, “any right, … against the other party.”
¶10It is well to remember that the court is not controlled by the stipulation. It may adopt or reject it as seems to it consistent and proper from the situation of the parties as disclosed by the evidence. The fact that such stipulations are usually adopted by the court does not change the situation. Warren v. Warren, 116 Minn. 458, 133 N. W. 1009; Erickson v. Erickson, 181 Minn. 421, 232 N. W. 793.
¶11If a party believes that the trial court intended to include the terms of the stipulation in the decree and failed to do so by mistake, the remedy is a request to open and have the decree amended. Hoff v. Hoff, 133 Minn. 86, 157 N. W. 999; see, Martinson v. Martinson, 116 Minn. 128, 133 N. W. 460, and Feltmann v. Feltmann, 187 Minn. 591, 246 N. W. 360.
¶12The stipulation between the parties dated July 14,1948, approved by order of the court on the same date, providing that “plaintiff is to retain the $900 which she has in her possession, … pending the outcome of plaintiff’s claim against the defendant for the sum of $10,000.00,” did introduce into the case the issue of the $900 *431and left the question open pending final determination of the case. Of this the court, which entered both the order and the decree, must have been fully aware. It can be safely assumed that it intended to settle this issue. The question must be determined by the decree as it stands.
¶13The decree states (par. 6) that neither party shall have any right, title, or interest against the other party. Whatever the parties intended by their stipulation relative to the $900 is immaterial, as the court, by its order denying defendant’s motion, indicated its intention and stated that, under the conclusions of law, order for judgment, and the decree entered accordingly, plaintiff is entitled to retain the $900 as her own property and defendant is not entitled to the return thereof as his property. The court itself, by the words it used, has interpreted the language and expressed the intention with which they were used. The language of the decree stands unamended. The subsequent order of the court clearly indicates what the court intended that language to mean. For the reasons above set forth, I respectfully dissent.
¶14(dissenting).
¶15I concur in the dissent of Mr. Justice Magney.