Haberly v. Farmers' Mutual Fire Relief Ass'n , 135 Or. 32 ( 1930 )

In Banc. This matter comes on for hearing on the motion of plaintiff to dismiss the appeal of defendant. The motion is based on the claim that the notice of appeal was not served in time. The verdict in the circuit court was returned by the jury on the 3d day of October, 1929. The judgment on the verdict from which the appeal is taken should have been entered within a day thereafter or not later than the 4th of October, 1929. It was not entered until the 8th day of that month. The notice of appeal was served by depositing the same in the postoffice on the 4th day of December, 1929, properly addressed to attorneys for plaintiff at Salem, Oregon. The notice was not served, therefore, until the next day or the 5th day of December, 1929, though it was filed with the proof of service in the office of the clerk of the circuit court for Multnomah county on the 4th day of December: § 540, Or. L., as amended by the Legislative Assembly for the year 1927, chapter 17. Plaintiff contends that inasmuch as the law requires the judgment on the verdict to be entered within the day the verdict was returned that the time for giving notice for appeal began with the 4th day of October, 1929, and not having been served until the 5th of December service was made too late, and the appeal must be dismissed: Strickler v. P. Ry., L. P. Co., 79 Or. 526, 527 (144 P. 1193, 155 P. 1195); Oxman v. Baker County, 115 Or. 436,444 (234 P. 799, 236 P. 1040). The notice of appeal must be served within 60 days from the time the judgment was entered: § 550, Subd. 5, Or. L. The judgment was not entered until the 8th day of October, 1929.

Entry is defined in 1 Bouv. Law Dict., Rawle's Third Revision 1045, as:

"The placing on record the various proceedings in an action, in technical language and order. * * *

"In the law books the words entry and entered are frequently used as synonymous with recorded: 130 N.Y. 504. See 100 Ill. 484;54 Cal. 519, 74 Ind. 59."

"The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict or findings, as distinguished from the entry of the judgment, which is the ministerial act of spreading it at large upon the record. Upon its rendition, and without entry, a judgment is final, valid, and enforceable, as between the parties, in the absence of any statute to the contrary, although for many purposes entry of the judgment is also essential": § 175, 34 C.J. 44-46.

"The return and recording of a general verdict under the direction of the court is generally a sufficient rendition of judgment; no further action on the part of the court is necessary, and it is the ministerial duty of the clerk to enter the proper judgment upon the verdict. Such entry is theoretically in accordance with the direction of the court, although in actual practice the entry is usually made by the clerk without any specific direction of the court to that effect": § 177, 34 C.J. 47; § 182, 34 C.J. 54, note 49.

It will be seen from these citations of authority that the entry of a judgment is a ministerial act, not judicial. For that reason a judgment is valid though it be not spread upon the record.

"The statute leaves no discretion in the trial court; its duty is clearly pointed out. The successful litigant should not suffer because the court has neglected to obey this provision of the law." City of Portland v. Blue, 87 Or. 271, 273 (170 P. 715).

In that case the court held, in an able opinion written by Mr. Justice McCAMANT, that where a judgment had been rendered by the circuit court of Multnomah county, an appeal to this court taken and the case decided, and after the mandate from this court had been sent to the circuit court, it was discovered that the judgment appealed from had never been entered. An order nunc pro tunc directing the entry of the judgment as required by law was sustained. It is not the date on which the judgment was rendered but the date it was entered from which is reckoned the time for taking an appeal. The language of the statute is "sixty (60) days from the entry of the judgment, order or decree appealed from." § 550, subd. 5, Or. L.

It was the duty of the clerk to have entered the judgment on the 3d or the 4th day of October, but defendant desiring to appeal should not suffer because the clerk did not attend promptly to his duty in that regard. Defendant had a right to serve and file his notice of appeal within 60 days from the date the judgment was entered. The judgment was a valid subsisting judgment though not entered. Were this not so the entry of a nunc pro tunc order, as was done in the City of Portland v. Blue, above, would not have validated an appeal taken before the judgment was entered. It was assumed by both parties to the Blue case that the judgment had been regularly entered. It was within the authority of the court to direct its entry more than two years after it was rendered because the entry was a ministerial act. The statute makes the date of the entry the act from which time is reckoned for taking an appeal. The statute controls.

In the instant case the clerk delayed entry of the judgment a few days. Appellant had a right under the law to rely on the record of the entry of the judgment as the statute prescribes. An appeal taken before the judgment is entered is irregular, but not fatal as clearly appears from City of Portland v. Blue, above. As further supporting the conclusion we have reached seeFisher v. Portland Ry., L. P. Co., 77 Or. 529 (151 P. 735).

The motion to dismiss is denied.

McBRIDE, J., absent.