Malott v. Randall , 83 Wash. 2d 259 ( 1974 )

Brachtenbach, J.

A stockholder’s suit was started by. Thomas Malott who owned stock in the Hecla Mining Company. Emil Heber, also a stockholder, intervened and is the appellant.

The trial court found against plaintiff and appellant. The matter of signing findings of fact, conclusions of law, and judgment of dismissal was noted for July 5, 1972. On that day the matter regularly came before the court and all counsel were present, including Mr. Robert A. Southwell, then counsel for plaintiff and plaintiff-intervenor.

After discussion by court and counsel, changes were made in the findings of fact by interlineation, and then the following took place:

The Court: . . . Anything further, Mr. Southwell?

Mr. Southwell: No sir. The Court: The Court will then sign the Findings of Fact, Conclusions of Law and the form of Judgment. Exceptions to the form? Mr. South-well: Well, I have signed on that, your Honor, and a copy was received. Notice of Presentation waived. I will let the record go for that. The Court: All right. The Judgment will be signed. Mr. Southwell: And the same with the Findings of Fact? The Court: All right. The judgment is made. Mr. Connelly: May I ask that your Honor date the Findings. I notice that when it was typed up a slot for the date wasn’t included. Thank you. (The Court adjourned.)

The court upon saying “The judgment is made,” signed the same and handed all the documents to the deputy clerk, who was present in the courtroom. All of this occurred after 5 p.m., the closing time of the clerk’s office. The deputy clerk put the judgment with the findings of fact and conclusions of law in a drawer of his desk in the courtroom. For some reason, the documents were left in the desk until August 8,1972, when they were found.

The deputy clerk’s journal fails to disclose that any judgment was signed. In fact, it merely recites that the matter had resumed for the presentation of findings of fact and conclusions of law; that two more exhibits were introduced and admitted and that the court “held the evidence insufficient and granted the defendant’s motion to dismiss with prejudice.” There is no mention of a judgment.

There had been interlineations in the findings of fact. Consequently about 4 days after the proceedings in court, one of the other lawyers in the office of the appellant’s counsel instructed their legal intern to get a copy of the judgment as entered. Of course inquiry at the clerk’s office revealed no judgment, either in the court file or entered in any index. Subsequent inquiries were made. The deputy clerk, who had put the papers in his desk in the courtroom, candidly admitted that the legal intern made such inquiry on two or three occasions and that he could not remember where the papers were, but that he brought up the possibility that they were in the judge’s chambers. On the other hand, the legal intern contends that he was told specifically by the clerk that he had never seen the judgment and that they had to be on the judge’s desk.

The Court of Appeals dismissed the appeal. Malott v. Randall, 8 Wn. App. 418, 506 P.2d 1296 (1973).

CR 58 provides in part that: “Judgments shall be deemed entered for all procedural purposes from the time of delivery to the clerk for filing . . (Italics ours.) Considering the statutory development which has culminated in CR 58 and our previous decisions which give meaning to the operative terms in that rule, we hold that a judgment must be lodged in the office of the clerk before it may be deemed “entered.”

There is a “clear distinction between the making or rendering of a judgment and its entry.” Quareles v. Seattle, 26 Wash. 226, 227, 66 P. 389 (1901). As we have long recognized, “the formal signing is the direction of the court to enter the judgment, which becomes such when it is received by the clerk and filed by him.” Thompson v. Seattle Park Co., 94 Wash. 539, 540, 162 P. 994 (1917).

Significant legal consequences flow from this distinction. This court has gone so far as to allow a court to withdraw a signed order of dismissal where it had not been formally entered by the clerk. State ex rel. Brown v. Brown, 31 Wash. 397, 72 P. 86 (1903). As recently as Grip v. Buffelen Woodworking Co., 73 Wn.2d 219, 224, 437 P.2d 915 (1968), this court said in a different context: “An appeal does not lie from anything other than a formal written final order or judgment signed by the judge and entered upon the records of the court, unless authorized by statute.”

CR 58 was preceded by RCW 4.64.010, which required that “The judgment shall be in writing, signed by the judge . . . and shall be filed with the clerk and recorded in the journal of the court.” Likewise, RCW 4.64.030 provides that “All judgments shall be entered by the clerk, subject to the direction of the court, in the journal . . .” The former rule on appeal 33, 34A Wn.2d 33, required a notice of appeal to be given within 30 days after entry of the final judgment.

Against this background, CR 58 was adopted. If mere delivery to- a deputy clerk in the courtroom is the controlling event, then the words “for filing” are surplusage.¹ However, CR54 clearly indicates that filing is an integral element of a final judgment by providing that “A judgment shall be in writing and signed by the judge and filed forthwith as provided in Rule 58.” (Italics ours.)

It is undisputed that the deputy clerk failed to take the judgment herein to the clerk’s office, but placed it instead in a drawer of his desk in the courtroom. This action, of course, does not constitute filing. The purpose of filing is to deposit the document in a public place so that it may be seen and examined by any person interested therein, and “A document may be said to be filed with an officer when it is placed in his official custody, and deposited in the place where his official records and papers are usually kept.” Stanley v. Board of Appeals, 168 Misc. 797, 800, 5 N.Y.S.2d 956 (Sup. Ct. 1938). See also Milton v. United States, 105 F.2d 253 (5th Cir. 1939).

In short, the judgment should be lodged in the office of the clerk before it can be deemed entered. As Judge McInturff observes in his dissent to the decision of the Court of Appeals, Malott v. Randall, 8 Wn. App. 418, 425, 506 P.2d 1296 (1973), if it is not so filed, no one other than the party handing the judgment to the deputy clerk and the deputy himself could know when it was entered: It is true that appellant’s counsel undoubtedly knew that the judgment had been signed. But assume facts only slightly different and the result of a contrary holding becomes patently illogical. Suppose that appellant’s counsel had waived notice of presentation and was not present when the judgment was signed, and that the judge handed it to the deputy clerk who placed it in his desk in the courtroom as happened here. Inquiry to the clerk and examination of the court file and every other journal, docket or index would have failed to show the existence of the judgment. (In this case the act of the judge in handing the documents to the clerk is not part of the record.) Assume further that no one in the courtroom could remember whether the documents were actually handed to the deputy clerk. To be consistent, if we held other than we do, we would have to hold that the time for appeal was running. Rather than lending certainty to the appellate process, such an interpretation of CR 58 would create potential confusion and untold problems.

Our holding is a very narrow one confined to the facts which hopefully are unique and unlikely to occur again. Yet, if we held otherwise, this litigant would.be deprived of his right to appeal because of an unfortunate set of misadventures which merely reflect the fact that human beings conduct the daily routines of the administration of justice.

We believe that CR 58 can be rationally interpreted to mean that the judgment must be placed physically in the office of the clerk before the time for appeal begins to run. A holding to the contrary in this case would violate the spirit of CR 1 which provides that the rules shall be construed to secure the just determination of every action.

The Court of Appeals is reversed and the appeal reinstated.

Hale, C. J., and Finley, Rosellini, Hamilton, and Utter, JJ., concur.

1 While the comment to CR 58 indicates that this rule supersedes RCW 4.64.010, it leaves in operation RCW 4.64.030 which requires the clerk to enter the judgment in the journal.