Bickel v. Dutcher , 35 Neb. 761 ( 1892 )

Post, J.

This is an appeal by the defendants Galligher and wife from a decree of the district court of Douglas county foreclosing certain mortgages and mechanics’ liens, and for the sale of the property in controversy in satisfaction thereof. The questions submitted for consideration at this time are presented by the motion of appellants to require appellees to supply certain exhibits which they allege were introduced in evidence before the district court and which are not included in the bill of exceptions filed in this court, and the motion of appellees to dismiss the appeal for the reason that it was not taken within the time allowed therefor by law. It is alleged in appellants’ motion that Exhibits C and D, the plans and specifications for the building which is the subject of the controversy, were introduced in evidence, “which exhibits have disappeared from said records and have never been attached to said bill of exceptions as such, notwithstanding appellants’ written objections attached thereto, and appellants move the court that appellees be required severally to produce said exhibits to be attached to the bill of exceptions,” etc. Numerous affidavits have been filed by the respective parties in support of and against the motion, from which it appears that when the bill of exceptions was prepared by the official stenographer at the request of appellants the two exhibits in question could not be found. The stenographer thereupon procured from one of the appellees the original plans and specifications, of which the exhibits in question were duplicates, and attached them to the bill of exceptions. Objection being made by Mr. Yan Etten, attorney for appellants, to such copies, they were excluded by the trial judge, Hon. E. Wakeley, and the bill of exceptions allowed and signed without such exhibits having been attached thereto. The motion of appellants is without merit. The exhibits were a part of the evidence in the district court, and if the copies furnished by the court reporter were incorrect, appellants should have had them corrected in that court or before the trial judge. They appear to overlook the fact that it was their own bill of exceptions and that it was their duty to present for allowance a true bill. If the missing papers had been introduced in. evidence by appellees and remained in theii possession, or under their control, we have no doubt the district court would have required them to be supplied upon motion of appellants. It is alleged by appellants that Exhibits C and D were introduced in evidence by them and left in the custody of the stenographer, but the part of the record to which we have been referred contains no reference to them except that they were identified by the witness Finley and marked by the stenographer. Nor are we able, after a careful examination of the voluminous record, to discover that they were ever offered in evidence. But in no event is it the province of this court to correct the bill of exceptions, and the motion of appellants should be denied.

2. The question presented by appellees’ motion to dismiss the appeal is attended with more embarrassment, in view of the conclusion of the majQrity of the court in Horn v. Miller, 20 Neb., 98. Before making further reference to that case let us examine the facts disclosed by the record in this. The decree begins with the following recital: “After-wards, at the May term of said court and on the 30th day of July, 1891, a decree was rendered herein as follows.” At the end of the decree, and immediately above the clerk’s certificate thereto, appears the following: “Dated July 27, 1891.” The only other record evidence on the subject is an entry in the appearance docket indicating that the decree was entered on the 1st day of August, 1891. The clerk of the district court testifies that the decree was filed in his office July 30. ’ From the affidavits of appellees it appears that on the 14th day of July, Judge Wakeley from the bench publicly announced his findings of fact and conclusions of law, or, in the language of the affidavits, “ his findings and judgment,” and that Mr. Smith, of counsel for appellees, was directed to draft a decree in accordance with the opinion so announced; that a decree was prepared and submitted to the attorney for appellants, by whom it was returned to Mr. Smith on the 22d day of July with written objections to the form thereof. Subsequently it was approved by the judge over the objections of appellants and filed with the clerk July 30. It does not appear that any notes were made by the district judge at the time of the announcement of his conclusion, or any entry in the trial docket or other record or entry of the decree, until it was approved by the judge presumably on the 27th. The question therefore is, When did the time allowed for appeal begin to run against appellants? If from the time of the delivery of the opinion of the judge on the 14th, the time had expired before the appeal was taken; but, if it is to be reckoned from the date of the approval, to the decree on the 27th, or from the date it was filed with the clerk on the 30th, it is clear that the appeal was taken in time and the motion to dismiss should be denied.

This case might be distinguished from Horn v. Miller on the facts, since here there is no record evidence whatever that the decree was entered on the 14th; hence the effect of the affidavits of appellees is to impeach or contradict their own judgment. We have, however, re-examined the question and the conclusion reached is in accordance with, the views expressed in that case in thedissenting opinion of the present chief justice. We can agree with the learned author of the majority opinion, that for some, perhaps most, purposes the date of a judgment is the time when the decision was made and announced by the court, rather than the time when it was entered upon the records. But in most, we believe all, of the cases cited in the opinions and text-books in support of that proposition the judgment was subsequently entered in conformity with the decision, and that in none of them was the testimony of witnesses received by the appellate court to prove that the judgment or decree was wrong in fact and was entered at a time other than that shown by the record. According to the practice in the chancery courts, the enrollment or entry of a decreé was necessary before a bill of review would lie (Story’s Eq. Pleading [9th ed.], sec. 403; Daniel’s Ch., 1576, 1581), and following that practice the rule has prevailed both in courts of common law and of equity in this country where the distinction has been maintained, that there must be an entry of the judgment or decree before an appeal will lie. By this it is not meant that it must in all cases be actually spread <upon the records of the court, for, as said in Horn v. Miller, in some states no such formal entry is required. But that the judgment must be made' a matter of record in order to limit the time for appeal is a proposition well sustained by authority. (Humphrey v. Havens, 9 Minn., 318; Hostetter v. Alexander, 22 Id., 559; Exley v. Berryhill, 36 Id., 117; Hazeltine v. Simpson, 61 Wis., 427; Milwaukee v. Pabst, 64 Id., 244; Rubber Co. v. Goodyear, 6 Wall. [U. S.], 153)

It is said by Judge Elliott in his recent valuable work on Appellate Procedure, see. 118: “The general rule is that there must be an entry of judgment before an appeal can be taken, and it must follow that until the judgment is entered the time within which an appeal must be taken ■does not begin to run. As an appeal taken before an entry •of judgment is premature, it may be dismissed on motion. There is some conflict in the adjudged cases, but the decided weight of authority supports the rule we have stated. It seems clear upon principle that the rule-stated must be the correct one, for until there is an entry of judgment there is no authentic record evidence of a final disposition of the case, and that there is a final judgment must, as a general rule, appear from the record.” And again, sec. 119, the same author says: “The right to appeal, as a general rule, dates from the time that a complete judgment is rendered and recorded.”

The rule which, in our opinion, has the sanction of authority, and which is commended by considerations of justice and equity, is that the time for appeal begins to run against the appellant from the time it is within his power to comply with the provisions of the statute regulating appeals by filing in the court a transcript of the proceedings of the district court, and not before. The motions to require appellees to supply the exhibits mentioned therein, and to dismiss the appeal are overruled.

Motions overruled.

The other judges concur.