Harbel Oil Company v. Steele ( 1956 )

LA PRADE, Chief Justice

(dissenting).

I respectfully present this dissent for the reason that I feel that a great injustice is being perpetrated by the summary dismissal of appellant’s appeal predicated upon a gross misinterpretation of our rules.

The problem before us concerns the point in time at which the sixty-day period allowed for an appeal from the denial of a motion for new trial begins to run. Is it the date the order denying the motion is rendered, or the day the notation of the court’s action is made by the Clerk of Court in the Civil Docket Book, or is it the point at which the trial judge directs the Clerk to note the order in the Civil Docket Book? The majority opinion has concluded that it is the last of the aforementioned possibilities.

Rule 73(b) of the Rules of Civil Procedure provides:

“1. When an appeal is permitted by law to the supreme court, it shall be taken by notice filed with the superior court within sixty days from the entry of the judgment or order appealed from, * * *.

“2. The time for appeal is extended by a timely motion made pursuant to any of the Rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made • upon a timely motion under such Rules: * * * * * *

“(iv) Denying a motion for a new trial under Rule 59.” (Emphasis supplied.)

There can be no dispute with the very plain language of the above rule to the effect that the time for an appeal begins to run from the “entry of the judgment or order appealed from”. That alone, however, is not determinative of the problem since it first becomes necessary to ascertain the meaning of “entry” under our rules.

The two rules which give us the answer are Rule 79(a) and Rule 58(a). Rule 79(a) reads in part as follows:

“Civil docket. The clerk shall keep a book known as ‘civil docket’ of such form and style as may be prescribed by the supreme court, and shall enter therein each civil action or proceeding to which these Rules are made applicable. * * * All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted chronologically in the civil docket on the folio assigned to the action or proceeding and shall be marked with its file number. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The notation of an order or judgment shall show the date the notation is made. * * * ” (Emphasis supplied.)

This rule makes it mandatory upon the clerk to keep a “civil docket”, and, inter alia, requires all judgments and' orders to be noted. Significantly, “The notation of an order or judgment shall show the date the notation is made”, not the date the order or judgment was rendered, nor the date upon which the court directed the clerk to make the entry. By Rule 58, entitled “Entry of judgment”, this act of notation alone, and nothing else, becomes the “entry” of the judgment. Rule 58(a) reads as follows :

“Entry. Judgment shall be entered when the court so directs. When the direction is that a party recover only money or costs, or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction, but when the direction is for other relief, the judge shall first promptly settle and approve the form of judgment. In cases of judgments for money or costs only, or that all relief be denied, the notation thereof in the civil docket, as provided by Rule 79(a) constitutes the entry of such judgment, and in cases granting any other relief, filing with the clerk of a form of judgment approved and signed by the judge, for recording in the civil order book, as provided by Rule 79(b) constitutes entry of such judgment, and in either case the judgment is not effective before such entry. The entry of the judgment shall not be delayed for taxing costs.” (Emphasis supplied.)

A plain reading of this rule indicates that in a case such as this one, the clerk is to enter judgment forthwith upon the direction of the court. But the language is eminently clear that “the notation thereof in the civil docket * * * constitutes the entry of such judgment” and not the direction by the judge to the clerk. That is precisely where the majority has, in my opinion, made its mistake. It has confused the giving of an order by a superior (the direction by the judge to the clerk to enter the judgment) with the carrying out of that order (the actual notation by the clerk in the civil docket). The majority finds “a patent ambiguity” in language which could hardly be more precise or unequivocal. But we need not rely on the interpretation of Rule 58 by this dissenter alone. Let us instead look at a statement made by the foremost expert in the United States on the subject of federal procedure and see how he construes Rule 58 of the Federal Rules of Civil Procedure which is substantially the same as our Rule 58 and from which our rule was taken. In his treatise entitled Federal Practice, Moore states at p. 3506, Vol. 6:

“After the rendition of the judgment comes its entry. Rule 58 defines ‘entry of judgment’ in this manner:

“ ‘The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; * * * >

“A notation- of a judgment is effected, pursuant to Rule 79(a), when the clerk makes a brief entry of the substance of the judgment in the civil docket on the folio assigned to the action. The entry of judgment, then, involves a ministerial act of the clerk that follows the rendition of the judgment, which is the pronouncement by the court of its judicial act of adjudication.” (Emphasis supplied.)

Again in Vol. 7 of the same treatise, at p. 3147, Moore adds:

“The language of amended Rule 73 (a) providing that the time for appeal shall ‘ * * * be computed from the entry of * * * orders * * * ’ granting or denying a motion specified in subdivision (a) of the Rule contemplates both an order and its entry in the docket in connection with such motion. And the time for taking an appeal runs from the day on which an order disposing of the motion is entered by the clerk, rather than from the day on which the district judge announces his conclusions as to the motion. * * * ” (Emphasis supplied.)

See, also, Mosier v. Federal Reserve Bank of New York, 2 Cir., 1942, 132 F.2d 710; United States v. Moore, 5 Cir., 1950, 182 F.2d 336; Napier v. Delaware, Lackawanna and Western R. Co., 2 Cir., 1955, 223 F.2d 28.

The majority opinion states that Rule 58(a) of our rules and its federal counterpart differ in their effect on the entry .of judgments, but again I find myself in disagreement. Under the federal rule the clerk is directed forthwith to enter the judgment upon a verdict unless the court otherwise directs. Under our rule the clerk is also directed forthwith to enter judgment, but only after direction by the court. Under the authorities cited above there is no judgment under the federal rules until notation of it is made in the civil docket. Rule 58, Federal Rules of Civil Procedure, reads in part as follows:

“ * * * The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; and the judgment is not effective before such entry. * * ”

This provision in our rule is identical. Under the specific wording of the federal rule and numerous interpretations by federal courts of appeal, the judgment or order is not entered until it is noted in the docket book. This is true regardless of the fact that the clerk is required to make the entry forthwith.

The majority refer to several differences between the federal rules and ours, but, such references (to Rules 55 and 68) seem to be wholly irrevelant to the issue in this case.

The majority opinion admits that procedural uniformity on a national scale is a desirable goal, but then contends that in this instance the local conditions in Arizona require a different interpretation than that placed on Rule 58(a)’s federal counterpart. Significantly, however, the majority do not mention or suggest even one specific fact or indication why local conditions require such a different interpretation. It is here submitted that no such difference in national and local conditions or problems exists in this particular instance.

As I interpret the majority opinion the entry of a judgment or order takes place when the judge directs the clerk to make a notation of such judgment or order in the civil docket (and this act starts the time for appeal running), with the result that even if the clerk should completely fail to make the appropriate notation in the civil docket book, sixty days later the time for appeal would have expired. By this interpretation the provisions in Rules 58(a) and 79(a) for the notation of judgments and orders, not required to be in writing, in the civil docket become superfluous and the purpose behind them, of providing a public record of court decisions, entirely defeated.

In view of the unequivocal language of our rules plus the construction placed on substantially identical provisions by the federal courts and Professor Moore, I conclude that this appeal was timely, notice having been given within sixty days from entry of the order. The clerk of the court or one of his deputies erred, however, in placing in the civil docket book the date

“May 10” when in truth and in fact the order was not entered on that date.

In my opinion the majority has not interpreted the rules, hut amended them by judicial decision.

The motion to dismiss the appeal should be denied.