Elsman v. Elsman ( 1931 )

ON MOTION TO DISMISS APPEALS [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The order of December 3, 1930, and made and entered in the minutes of the court of that date, denying appellant's motion for an order modifying the decree of divorce theretofore made on January 4, 1927, was a special order made after judgment and under section 8885, N.C.L., and an appeal was required to be taken within sixty days after such order was made and entered in the minutes of the court. As the appeal was not taken within the time provided by statute this court has no jurisdiction to entertain the appeal from the order of December 3, 1930, and the motion to dismiss must be sustained as to the appeals from that order. Paroni v. Simonsen, 34 Nev. 26; Clark v. Turner, 42 Nev. 450; Kingsberry v. Copren, 47 Nev. 466.

We know of no authority in the laws of the State of Nevada which authorizes or sanctions a motion for new trial of an order based upon and made in pursuance of a notice of motion, as was attempted in the case at bar. Nor do we know of any authority elsewhere for such a proceeding. Bancroft's Code Practice and Remedies, vol. 7, sec. 5908, p. 7821; Rule XI of District Court, subd. 4, vol. 4, N.C.L., p. 2477; secs. 8753, 8875, N.C.L.; Harper v. Hildreth, 99 Cal. 265, 33 P. 1103; Doyle v. Republic Life Ins. Co., 125 Cal. 9, 57 P. 667; Gray v. Cotton, 174 Cal. 256,162 P. 1019.

The motion for new trial of the appellant being an unauthorized proceeding under our statutes, it becomes unnecessary for the court to determine whether the order of December 23, 1930, denying appellant's motion for a new trial, was made and entered in the minutes of the court on that date or, as stated in appellant's notice of appeal, "on or about December 31, 1930."

There being only one appealable order, viz, that of December 3, 1930, and the appeal from this order not having been taken until February 26, 1931, a period of eighty-five days after the order was made and entered in the minutes of the court, twenty-five days after the time allowed by law in which to appeal therefrom, this court has no jurisdiction to entertain the appeals. The order made on December 3, 1930, was and is a "judgment." The defendant's custody motion was a "proceeding," and the order of December 3, 1930, was a final determination of the rights of the parties in that "proceeding." Sec. 8794, N.C.L.; Perkins v. Sierra Nevada S.M. Co., 10 Nev. 411; 33 C.J. 1051, n.c.; 3 C.J. 442, sec. 258, n. 53.

Conceding, for the purposes of the argument, that defendant's proceeding was a mere motion and that the court's decision thereon was a mere order, we contend that by common consent, express as well as tacit, of the plaintiff as well as of the trial court, there was by defendant's motion for new trial proceeding a renewal and rehearing on defendant's said "motion" for custody, and hence it was the making and entry of the decision dated December 23, 1930, denying defendant's motion for a "new trial," that, when entered, started defendant's time to appeal to run, and not the making and entry of the decision dated December 3, 1930. District Court Rule XI, subd. 4; 42 C.J. 516 and n. 22; Sec. 8875, N.C.L.; Vickers v. Vickers, 45 Nev. 288; Edwards v. Jones, 49 Nev. 342.

Records written up by the clerk of the court, orders, proceedings, etc., do not constitute minutes of the court nor can such proceeding be deemed entered in the minutes until such minutes have been read, approved and signed by the judge. Rule IV of District Court. Hence, whether the instant appeals be considered as having been taken from an order denying a new trial or from a special order made after final judgment, it is the time of entry of such order in the minutes of the court that starts the sixty days' time to appeal running. Sec. 8885, N.C.L.; 15 C.J. 976 and n. 22; Whitcomb v. State (Tex.), 190 S.W. 484; Wilder v. Bush (Ala.), 75 So. 143; Johnson v. Johnson (Tex.), 2 Heisk. 521; Cloughton v. Black, 24 Miss. 185; In Re Pearsons' Estate (Cal.), 50 P. 929.

OPINION Respondent has moved to dismiss the appeals in the above-entitled cause.

In January, 1927, the lower court granted a divorce to Beatrice J. Elsman from Ralph Elsman, and awarded to him the custody of their minor child, Ralph Elsman, Jr., subject to certain rights of visitation by the mother. In May, 1928, the court modified the original decree relative to the custody of the minor child. On November 4, 1929, Ralph Elsman filed in said court and cause a motion to again amend the said decree relative to the custody of said child, and thereafter the said Beatrice J. Elsman filed her objections to the modification as sought by Ralph Elsman, and applied for a modification thereof so as to give her the sole possession and custody of said child.

After numerous continuances, hearings, and a prohibition proceeding in this court (State Ex Rel. Elsman v. District Court,52 Nev. 379, 287 P. 957), the lower court on December 3, 1930, filed its written opinion and decision wherein it incorporated the following:

"It is the order of this court that the petitions or motions of both plaintiff and defendant for the modification of the decree of this Court entered herein January 4, 1927, relative to the custody of Ralph Elsman, Jr., as modified May 2d 1928, be, and each of said motions or petitions for modification is denied.

"And it is ordered that the said order of modification of May 2d 1928, be and the same is affirmed and continued in force as therein provided, save and except that instead of the defendant, Beatrice Elsman, being entitled to one month's visitation of an hour a day on notice by her to plaintiff of any one month in each year desired by her, it is the order of this Court that said right of visitation be, and the same is fixed for the month of July of each year, at which time defendant shall have the right to visit the minor child, Ralph Elsman, Jr., for one hour each day at either of the homes of said minor's father in Washoe County, Nevada, at the Franktown residence or the Reno residence."

Thereafter, and on December 10, 1930, counsel for the defendant served and filed a motion for a new trial. Counsel for plaintiff also filed a motion for a new trial. Both motions came on for hearing on December 23, 1930, at which time counsel for plaintiff withdrew his motion for a new trial, and thereafter, on December 23, 1930, argument was heard upon defendant's motion. After argument the court entered an order denying defendant's motion.

On the 23d of December, 1930, the court, on motion of counsel for plaintiff, ordered that an order, nunc pro tunc, as of December 3, 1930, in terms identical to those incorporated in the decision of December 3, 1930, be entered.

On February 26, 1931, the defendant served and filed her notice of appeal "from a judgment rendered in favor of the plaintiff and against the defendant in the above-entitled action and court on December 3, 1930, and also from that certain order made by the above-entitled court in the above-entitled cause on December 23, 1930, denying defendant's motion and application for a new trial of said cause, said order being entered in the minutes of the court on or about December 31, 1930."

Thereafter, on May 4, 1931, the defendant served and filed her notice of appeal "from an order Made December 3, 1930 in the above-entitled Court and cause in favor of plaintiff and against the defendant, denying defendant's application for an award that defendant be granted custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant, the Minute record of which said order denying defendant's said application, was not approved and signed by the trial judge, to-wit: Hon. Geo. A. Bartlett, prior to March 10, 1931; and also, from that certain order made by the above-entitled Court in the above-entitled cause on December 23, 1930 denying defendant's Motion and application for a new trial of said cause, said order being written up by the Clerk in the Minute Book of said Court on or about December 31, 1930 and which said record was not approved and signed by the said Judge Geo. A. Bartlett prior to March 10, 1931."

Counsel for respondent on June 22, 1931, served and filed notice to dismiss the two appeals taken by appellant, for lack of jurisdiction of this court to entertain the same, for which the following reasons are assigned:

"First: The proceedings sought to be appealed from and called in appellant's first Notice of Appeal, dated February 26, 1931, ``a judgment rendered in favor of plaintiff and against the defendant in the above-entitled action on December 3, 1930,' is not and was not a Judgment, but was and is an Order of the Court, denying defendant's Motion for an Order modifying, changing, and amending certain parts of the Decree of divorce heretofore made and entered in said action on the 4th day of January, 1927, and that no appeal was taken from said Order of December 3, 1930, within sixty days from the time said Order was made and entered in the Minutes of the Court;

"Second: That the appeal from the Order of the Court in said cause on December 23, 1930, denying defendant's Motion and Application for a new trial, was not taken within sixty days from the time said Order was made and entered in the Minutes of the Court;

"Third: That there is no authority under the laws of the State of Nevada, for the new trial of a Motion, and that no appeal lies from an order denying such motion for new trial;

"Fourth: That the court has no jurisdiction to entertain defendant's attempted appeal under her Notice of Appeal dated May 4, 1931. That said appeal was not taken within sixty days from the time the Order of December 3, 1930 was made and entered in the Minutes of the Court, denying defendant's application for an award that defendant be granted custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant.

"That there is no authority under the laws of the State of Nevada, for the new trial of a motion and that no appeal lies from an Order denying such motion for new trial.

"That such attempted appeal from said Order denying defendant's motion for new trial was not taken within sixty days after said Order denying said motion for a new trial was made and entered in the Minutes of the Court."

Counsel for respondent have stated the points involved on this motion as follows:

"First: Whether the appeal is taken from a final judgment in an action or special proceeding, or whether it is an appeal from a special order made after final judgment entered in the minutes of the court.

"Second: Whether or not an appeal lies from an order overruling a motion for new trial of a motion."

On May 5, 1928, the court, on application of the plaintiff, "ordered, adjudged and decreed" that the original decree be "amended, modified and changed." It further reserved the right to again alter the decree, judgment or order, or whatever it may be, whenever the best interest of the child so demands.

The determination of the motion to dismiss turns upon whether or not the order, decree, or judgment of December 3, 1930, was an order or a judgment. If it were a judgment, the motion to dismiss must be denied.

Counsel for respondent contend that it is an order, and in support of their contention they rely strongly upon section 420 of our civil practice act, section 8909, Nev. Comp. Laws 1929, which reads: "Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion."

The section quoted is no aid in determining the point, for the reason that it excepts an order included in a judgment.

Under the old practice, when actions at law and suits in equity were separate and distinct, the final determination of action at law was called a judgment, while in suits in equity it was designated a decree. Divorce suits were equitable in character, hence they were known as decrees. Under the code of civil procedure the words "action," "suit," and "judgment" are often used without any regard to their old meaning. Even in our divorce act we do not find the words "judgment" or "decree" used, but do find the words "order" and "ordered" (see sections 9462, 9463, 9464, 9465 and 9466, Nev. Comp. Laws 1929), which indicates to our minds that the legislature was not so much interested in the word or words used to indicate its intention as to the final determination of the matters involved, as it was to direct what might or should be done.

1, 2. It is our impression that a judgment or decree, as the case may be, as distinguished from an order, is the final determination of the rights of the parties, whereas an order generally is a direction of the court preliminary and incidental to such final determination. There may be, of course, certain orders after final judgment, such as an order denying a motion for a new trial and a special order made after final judgment. The latter, however, is one which relates to the final judgment, either by way of enforcing or staying its operation. Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; Watson v. Prior, 49 Cal. App. 554,193 P. 797.

The determination of December 3, 1930, did not pertain to enforcing or staying the operation of a judgment or decree, hence we think it is not a special order made after final judgment.

3. The original decree in this cause was a final determination. The amendment of May 3, 1928, was, when entered, of equal dignity to the decree of 1927, when it was entered, and entirely supplanted the decree of 1927, as to the custody of the child. No other view can, in reason, be maintained. This being true, we think no other sound conclusion can be reached but that the determination of December 3, 1930, was a final judgment, subject, of course, to further modification, altering, or amendment, as subsequent developments may justify.

In Gury v. Gury (Cal.App.), 300 P. 81, 83, which was a case involving the custody of a child, the court says: "The authorities are clear that a change which materially affects the judgment and the rights of the parties against whom it is rendered and which involves the exercise of judicial discretion amounts to a new judgment" — citing authority.

We think this is such a case. There was a material change affecting the rights of the parties, and the making of the change involved the exercise of judicial discretion.

4. The determination of December 3, 1930, being a final judgment or decree, the respondent had the right to move for a new trial and to appeal from the order denying the same within sixty days from the day it was entered in the minutes of the court. It is the practice of the clerk to jot down, at the time an order, judgment, or decree is entered, the substance of the same, and thereafter to enter it in a formal manner in the minute book so known and designated. It appears that the court did not enter in the minute book the order denying the motion for a new trial in this matter until on or after December 28, 1930. The appeal was taken February 26, 1931, or within sixty days from such entry, which was within apt time. It follows that the motion must be denied.

It is so ordered.

ON PETITION FOR REHEARING October 29, 1931. 3 P.2d 1071.