Gravel v. Alaskan Village, Inc. , 1966 Alas. LEXIS 201 ( 1966 )

DIMOND, Justice.

On August 10, 1965 appellant filed a notice of appeal “from the judgment of dismissal of plaintiff’s (appellant’s) complaint with prejudice and from the whole thereof, which said judgment was entered on the docket of this Court on July 28, 1965.” Appellee has moved to dismiss the appeal on two grounds: (1) that the notice of appeal was not timely filed, and (2) that this action was settled and dismissed by consent of the parties and that a consent judgment is not subject to appellate review.

Timeliness of Appeal.

In proceedings in the superior court on January 12, 1965 it was agreed by the parties, with the court’s approval, that appellant would dismiss with prejudice his complaint against appellees, «that appellees would dismiss with prejudice their counterclaim against appellant, and that a transcript of the proceedings would constitute a settlement of the case. The court stated that the transcript would be prepared and filed at the expense of the state. It was on this day that the following docket entry was made:

Hearing Re: Settlement & M.O. Dismissing Case (Crt Dismisses case & counter-claim; Crt orders transcript of these proceedings of this date t/b final settlemtnt [jic] document w/cost t/b paid by State CASE CLOSED C7/256.

On April 6, 1965 the transcript was filed and the following docket entry was made:

Filed Transcript Request Order (1 — 12— 65 Hrng Re: Settlement & M.O. Dismissing Case (b/half Judge Ralph E. Moody b/AP) Filed Transcript of Hearing Re: Settlemtnt [m'c] & M.O. Dismissing Case.

Although neither docket entry states in so many words that a judgment was entered, both entries reflect what was clearly intended by the court and the parties on January 12, that is, that the agreement for settlement stipulated to by appellant and appellees was to constitute a final disposition of the litigation. It is that intent that governs,¹ and therefore a final judgment dismissing the complaint and counterclaim with prejudice was entered cither on January 12, 1965, when the parties agreed to the dismissal, or at the latest on April 6, 1965 when a transcript of the January 12 proceedings was filed in accordance with the agreement made by the parties. It is unnecessary for us to decide which of the two dates govern, because in either case the notice of appeal, not being filed until August 10, 1965, was too late.²

We are aware of the fact, that on July 28, 1965, the date that the court signed an order denying appellant’s motion to vacate the judgment of dismissal of appellant’s complaint, that the clerk of the superior court made the following docket entry:

Judgment of Dismissal of plaintiff’s complaint and defendants’ counterclaims with prejudice.

This action hy the clerk does not mean that on July 28 there was entered a judgment of dismissal from which an appeal could be taken, as appellant contends it does. The court proceedings of July 28 do not show that the judge intended to finally dispose of the case on that date, rather than on January 12 when the parties agreed on a settlement of the case or on April 6, 1965 when the transcript of the January 12 proceedings was filed. The July 28 entry by the clerk was made without any order or direction of the court, and it did not correctly reflect what occurred on that date. It was an erroneous entry made without authority and did not constitute the entry of a judgment.

The only judgment³ that was effectively entered on July 28, 1965 was that which denied appellant’s motion to vacate the judgment of dismissal of appellant’s complaint. As to such denial of the motion to vacate, the appeal was timely because it was taken on August 10, 1965, which was less than 30 days from July 28, 1965. It is true that the notice of appeal specifies that the appeal is taken from “the judgment of dismissal of plaintiff’s complaint with prejudice”, rather than from the order denying the motion to vacate the judgment of dismissal. But it seems clear that appellant intended to also appeal from the order denying the motion to vacate because in his statement of points on appeal he specifies as error the action of the court in denying such motion.

The concurring opinion of our colleague, Justice Rabinowitz, suggests that existing uncertainties in the area of entry of judgments would be decreased if we were to amend Civil Rule 58 in the manner that the United States Supreme Court has amended Rule 58, Federal Rules of Civil Procedure. Whether that is so or not, we do not know. We believe, however, that even under an amended rule it would have to be recognized that situations may arise where, as here, the court and all the parties intend that certain proceedings in court shall constitute a final disposition of litigation, and where it would be unjust to go back and enforce the literal wording of the rule after the parties had acted in reliance upon what they thought was a settlement of the dispute. In such a situation, regardless of the particular wording of the rule, we might be obliged to recall that

These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.⁴

All that we do here is to refuse to enforce the literal reading of Civil Rule 58 that “[t]he notation of a judgment in the civil docket as provided by Rule 74 constitutes the entry of the judgment; and the judgment is not effective before such entry”, when the parties themselves, with the concurrence of the court, had made it abundantly clear that they considered the January 12, 1965 proceedings in court as constituting a final and complete settlement of the litigation. There can be no doubt that this was the appellant’s understanding, as can be seen from the following excerpts from the transcript of the proceedings on January 12:

MR. GRAVEL: Your Honor, would it be possible that the entire transcript of today’s proceedings winding up with the last statements of Your Honor be the settlement in question?

THE COURT: Well,—

MR. TULIN: I agree.

THE COURT: What was that?

MR. GRAVEL: I agree, Your Honor.

THE COURT: To the — just the last statement of the Court relative to what the understanding of the parties was and the parties consent to it? Of course, the parties can always order a transcript of—

MR. GRAVEL: I think it wouldn’t be unreasonable, Your Honor,—

THE COURT: It’s always—

MR. GRAVEL: (Continuing) — if it’s all right with Mr. Arnold, that the entire document be considered a settlement, and the showing of the final' agreement at the end, I think, will be-adequate.

MR. ARNOLD : Well, I haven’t any objection to that. I’m wondering who-is going to pay for it.

MR. GRAVEL: May I inquire what we’re talking about — -it costs. I’ve incurred a great deal of costs, this weekend.

THE COURT: Well, I’ll tell you,, the Court will order it filed at the Court’s expense.

MR. ARNOLD: Thank you, Your Honor.

MR. GRAVEL: Thank you, Your Honor, for your indulgence.

To the extent that it relates to the dismissal of appellant’s complaint, the appeal must be dismissed because it was not timely. It is also subject to dismissal because appellant consented to the entry of a judgment dismissing his complaint, and a consent judgment, under the generally accepted rule, is not subject to appellate review.⁵ It is true that there are exceptions to the rule, such as where there is lack of consent to the judgment or lack of jurisdiction over the subject matter, or where-the judgment was obtained by fraud, collusion or mistake.⁶ But in those instances the remedy of a party is to first seek relief from the judgment in the trial court by motion under Civil Rule 60(b).⁷ If such relief is denied, then an appeal may be taken to this court from the order of denial of the motion.⁸

Appellees’ motion to dismiss the appeal is granted and the appeal is dismissed to the extent that it relates to the consent judgment dismissing appellant’s complaint and appellees’ counterclaim with prejudice. The motion to dismiss is denied to the extent that the appeal relates to the order of July 28, 1965 denying appellant’s motion to vacate the judgment of dismissal.

1 . United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721, 726 (1958) ; In re Mountain View Pub. Util. Dist. No. 1, 359 P.2d 951, 954 (Alaska 1961).

2 . Supreme Ct.it. 7(a) provides in part:

The time within which an appeal may be taken to the supreme court shall be thirty (30) days from the entry of the judgment appealed from ⅜ * *.

Radich v. Fairbanks Builders, Inc., 399 P.2d 215 (Alaska 1965) ; Vogt v. Winbauer, 376 P.2d 1007 (Alaska 1962).

3 .Civ.R. 54(a) provides:

Judgment as used in these rules includes a decree and any order from which an appeal lies.

4 . Civ.R. 94.

5 . Hibernia Sav. & Loan Soc’y v. Waymire, 152 Cal. 286, 92 P. 645 (1907) ; Tracy v. Tracy, 213 Cal.App.2d 359, 28 Cal.Rptr. 815, 817 (Dist.Ct.App.1963) ; Kelly v. Winkler, 351 Ill.App. 145, 114 N.E.2d 335 (1953) ; Washington Asphalt Co. v. Harold Kaeser Co., 51 Wash.2d 89, 316 P.2d 126, 127, 69 A.L.R.2d 752 (1957) ; Annot., 69 A.L.R.2d 755, 767-85 (1960).

6 . Washington Asphalt Co. v. Harold Kaeser Co., supra note 3; Annot., 69 A.L.R. 2d 755, 786 (1960).

7 . Civ.R. 60(b) provides in part as follows :

Mistakes — Inadvertence — Excusable 'Neglect — Newly Discovered Evidence— Fraud — Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons :

(1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b) ;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void ;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(G) any other reason justifying relief from the operation of the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.

8 . Friedman v. Friedman, 307 Ky. 439, 211 S.W.2d 403 (1948) ; King v. Taylor, 188 N.C. 450, 124 S.E. 751 (1924) ; Buchberger v. Mosser, 236 Wis. 70, 294 N.W. 492, 495 (1940) ; Annot., 69 A.L.R.2d 755, 808 (1960).