After a decision by this court a petition for rehearing was granted herein. On further consideration of the questions involved in the appeal, we are convinced that the original conclusions, as indicated in the opinion of the court, are correct; said opinion being as follows:

“ It should be remembered that the judge had indicated by his opinion previously filed just how the ranch was to be partitioned; that he had authorized a surveyor to prepare a map showing courses and distances in accordance with the directions contained in the opinion, which presumably the surveyor had done; and that immediately preceding the drawing of the decree, all of the parties, with their respective attorneys, had met with, the judge and, after some discussion, agreed to waive findings. If the decree was the result of a ‘stipulated judgment,’ the record is faulty in not disclosing that such was the case. So far as appears from the record, the only stipulation entered into was that findings of fact were waived. In preparing the decree, the surveyor’s map was used as the basis for the allotments to the several litigants. There was no agreement either among the parties to the action, or among the attorneys who were present, that any change whatsoever should be made as to any parcel to be awarded to any litigant as indicated by the judge’s opinion. Apparently it was taken for granted that the map as prepared by the surveyor correctly delineated each individual tract to be awarded to the several parties to the action strictly in accordance with the directions contained in the opinion of the judge of the trial court. As to Tract H (that being the tract in which Chavez was personally interested), the direction was general only, but to the effect that certain lines ‘should be moved westerly (from the lines as fixed by the report of the original referees) a sufficient distance to include an 'area having a valuation of $647.46. ’ The attorneys representing the several parties to the action, after agreeing that findings of fact should be waived, were merely attempting to draw a judgment which would follow the judge’s conclusions as to how the ranch should be divided. That in so doing, they relied upon courses and distances as shown by a certain map prepared by a surveyor, and by reason thereof that one of the parties to the action did not receive as much land as he supposed he was getting, in no way affects the integrity of the decree as signed by the judge. The decree was wholly the act of the court; and unless the judge was imposed upon when he signed the decree, no cause for complaint exists on the part of any of the several parties to the action arising ont of or ‘through his mistake, inadvertence, surprise, or excusable neglect.’ The attention of this court has not been directed to any evidence which would justify the conclusion that the decree as signed by the judge of the trial court departs in any degree, so far as either of the appellants is concerned, from the conclusions announced by the judge in his written opinion as to the tract which should be awarded to either of said appellants. To the contrary, if there may be considered by this court the letter written by one of the attorneys herein to another of the attorneys in the action, and which letter, on the hearing of the motion, was received in evidence without objection, the decree as signed was in actual compliance with the court’s directions. Nothing in the evidence received by the trial court on the hearing of the motion for relief from the judgment in any way militates against said conclusion, other than a statement contained in an affidavit which was used on the motion, to the effect that a certain number of acres of each of the different classes of land comprised the allotment to appellant Chavez, as shown by the decree which was signed by the judge—from which it is argued that because the value of such land as determined under the schedule of values thereof elsewhere fixed by the court on the recommendation of the original referees, does not amount to as great a sum as Chavez was entitled to receive—a fraud must have been practiced upon the court. In this connection, it should be noted that the person who made the affidavit failed to state the method by which he classified the land awarded to Chavez, and that nowhere does it appear that his classification of the land agreed with the classification thereof made by the original referees. The conclusion, however, for which appellants contend, would not necessarily follow for the reason that, although under the decree possibly Chavez may not have received his full proportion of the value of the ranch, his failure to do so may have arisen from a miscalculation by the judge which was announced in his opinion and correctly followed by the surveyor. But, in any event, the motion for relief from the judgment, as therein specifically stated, was based upon ‘mistake, inadvertence, surprise and excusable neglect’ of Chavez, rather than upon any fraud practiced on the court; and the effect of the denial of the motion in controversy by the judge who ruled thereon is a finding of fact that there was no such mistake, inadvertence, surprise or excusable neglect on the part of Chavez; and, in addition thereto, that he received all the land to which he was entitled by virtue of the judgment rendered in said action.

“ The consensus of judicial opinion in this state would therefore appear to be that a judgment rendered in pursuance of a stipulation, which judgment in fact fails to follow the stipulation, cannot be corrected under the provisions of section 473 of the Code of Civil Procedure as to a material departure from the stipulation, but that the only-relief afforded an injured party is through the procedure of a motion for a new trial or by an appeal from the judgment.

“Assuming that the tract awarded to one of the appellants, as well as those several tracts awarded to some of the respondents respectively, included land in each thereof which was outside the boundaries of the property to be partitioned; in the absence of any showing that any such tract was not in accordance with the specifications therefor, as indicated by the judge’s opinion, to which reference heretofore has been had, the error, if any, arose through the judge’s misdirection, and not through any ‘mistake, inadvertence, surprise, or excusable neglect’ of either of the appellants; and under the authorities heretofore cited herein could not be corrected under the provisions of section 473, Code of Civil Procedure; but relief therefor could be afforded only through a new trial of the action.”

The order from which the appeal is taken is affirmed.

Conrey, P. J., and Curtis, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 12, 1925.

All the Justices concurred.