Malott v. Randall , 8 Wash. App. 418 ( 1973 )

Munson, J.

Plaintiff, Thomas Malott, instituted a derivative stockholder’s action against defendants. Emil Heber, appellant herein, joined as plaintiff in intervention. The matter was tried in the superior court and on July 5, 1972 came before that court for signing and entry of findings of fact, conclusions of law and judgment for defendants. At that time Mr. Robert Southwell, trial counsel for appellant, was present, as was counsel for plaintiff, defendant corporation and special counsel for defendant E. H. Herman. Discussion was had and some interlineations made in the proposed documents. In the presence of all, the following then occurred:

The Court: Any other exceptions? . . . 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. Southwell: 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.

After the signing of these documents on July 5, 1972, in the presence of counsel for all parties, the documents were delivered to a deputy clerk of Spokane County for filing. This was done after the main clerk’s office was closed for the day and the deputy clerk put them in the drawer of his desk in the courtroom. Thereafter, he inadvertently failed to deliver them to the clerk’s office for docketing and filing. Several days after the signing of the documents, Mr. Soüth-•well requested an associate of his go to the clerk’s office and obtain a copy of the judgment to verify that they had made all the proper interlineations upon their copy of the judgment. The associate found no judgment on file in the clerk’s office. He then inquired of the deputy clerk on numerous occasions as to the whereabouts of the judgment and ultimately was advised it was on the judge’s desk. In fact, the judge did not have possession of the documents. They were found on or about August 8, 1972 in a drawer of the deputy clerk’s desk in the courtroom, whereupon they were promptly filed.

Thereafter, on September 7, 1972, notice of appeal was filed. The superior court record was later corrected by changing the filing date for these documents from August 8, 1972 to July 5, 1972. In Malott v. Randall, 7 Wn. App. 753, 502 P.2d 1249 (1972), we held the'superior court did not have jurisdiction to change the filing dates on certain documents after a notice of appeal was filed September 7, 1972. We did grant respondent’s oral motion in this court to allow the superior court to proceed with a record-correction hearing. This court, at that time, was aware, a motion to dismiss the appeal was pending before us, based on an allegation of untimely filing. We anticipated that the testimony to be adduced at the.record-correction hearing would produce evidence pertinent to the then pending motion to dismiss. If in fact there was an untimely filing of the notice of appeal, this court would not have jurisdiction to hear the appeal. But, this court always has jurisdiction for the purpose of determining whether it has jurisdiction. Thus, Mal-ott does not acknowledge that the notice of appeal filed September 7, 1972 was timely; that question was reserved for determination in the instant hearing and is the only issue presently before us.

CAROA 33 requires a notice of appeal be filed “within thirty days after entry of the order, judgment, or decree from which the appeal is taken”. (Italics ours.)

CR 58,¹ adopted May 5, 1967 and effective July 1, 1967, states:

(a) . . . all judgments shall be entered immediately after they are signed by the judge.

(b) Effective Time. Judgments shall he deemed entered for all procedural purposes from the time of delivery to the clerk for filing, . . .

(Italics ours.) Inasmuch as the notice of appeal in the instant case was not filed with the clerk of the superior court within 30 days after judgment was “entered”, this appeal must be dismissed.

As stated in In re Estate of Yand, 23 Wn.2d 831, 838, 162 P.2d 434 (1945):

Where rule of court prescribes the time of filing of the notice of appeal, such is a jurisdictional step; and .neither stipulation nor other act of the parties can confer the right of appeal, once lost by expiration of the time prescribed by the rule for filing of the notice. In other words, an appeal must be perfected in the manner and time required by the rule in the court where judgment or order from which appeal is taken is entered to give appellate court jurisdiction of the appeal for purpose other than dismissal of the appeal.

(Italics ours.)

There can be no question that trial counsel for appellant was aware the judgment had been signed since counsel was present at the signing. The trial judge and the deputy clerk have confirmed that the signed documents were then delivered to the clerk for filing. Such is sufficient compliance with CR 58 to evidence that the judgment was “entered”.² It has been held in this jurisdiction that judgment is deemed entered at the time it is delivered to the clerk for filing and not at the time the clerk enters it in the docket in his office. Quareles v. Seattle, 26 Wash. 226, 229, 66 P. 389 (1901); Cinebar Coal & Coke Co. v. Robinson, 1 Wn.2d 620, 97 P.2d 128 (1939); Canzler v. Mammoliti, 40 Wn.2d 631, 633, 245 P.2d 215 (1952); see also Mackey v. Champlin, 68 Wn.2d 398, 413 P.2d 340 (1966); Kelly v. Schorzman, 3 Wn. App. 908, 911, 478 P.2d 769 (1970).

There may be language in older cases capable of being interpreted to indicate some act other than “delivery to the clerk for filing” as the act of entry of judgment. Such language is no longer effective. The adoption of CR 58 in 1967 clarified the then existing law and established “delivery to the clerk for filing” as the pertinent act.

There may be occasions when the court signs the judgment, or other final order, and does not immediately hand the document to the clerk. For example, a judgment is occasionally signed in chambers with the clerk not in attendance. In such instances, the document would not be “entered” until counsel or the bailiff, to whom the judge has presented the document, delivers it to the' clerk for filing. Lapses have occurred in such instances thus delaying delivery to the clerk. If such an instance had occurred here and actual delivery to the clerk had not been made until August 8, 1972, we would arrive at a different result. However, delivery was made to the clerk on July 5,1972.

Ordinarily, the date of filing stamped on the document is controlling; but not when there is evidence that the document was delivered to the clerk for filing on a different date. Potts v. Nelson, 36 Wn.2d 764, 766, 220 P.2d 544 (1950). As stated in Schultz v. Anderson, 191 Wash. 326, 329, 71 P.2d 365 (1937):

The date of the clerk’s file mark appearing upon an instrument or part of a record filed with him is prima facie evidence of the time when such instrument or part of a record was filed, and, in the absence of evidence to the contrary, is conclusive. It is no doubt true that, if an issue were raised before the court as to the correctness of the clerk’s minute, the court could properly hear and determine that issue. But nothing of that kind is involved in this case.

(Italics ours.)

The undisputed evidence is to the effect that on July 5, 1972 the superior court judge delivered the judgment to the deputy clerk of his court for filing but it was not actually filed by the clerk until August 8, 1972. It is the date upon which the document was delivered to the clerk for filing that controls. Here, evidence contrary to the stamped date of filing established the delivery date as July 5.

Appellant contends that to follow the rationale above is an unreasonable infringement upon appellant’s right to appeal. We disagree. To say that trial counsel was misled by comments made by the deputy clerk does not relieve him from the duty to file a notice of appeal within 30 days after entry of judgment. Appellant’s trial counsel was aware he had to file a notice of appeal within 30 days of entry of judgment or abandon the appeal. There was no need for counsel to see the judgment before filing the notice of appeal; a copy of. that judgment is not required to be filed with the notice of appeal in the superior court.

Those who secure judgments at the trial level are entitled to have their judgments become final. Unless one dissatisfied with the judgment takes prompt action to challenge that judgment, the judgment holder is entitled to its finality. The only time limitation in the appellate process not subject to extension within the appellate court’s discretion is the timely filing of a notice of appeal. Inequities existed previously when time limits, other than that of the notice of appeal, were more strict. See Michaelson v. Over-meyer, 77 Wash. 110, 137 P.332 (1913) (void order extending time for filing statement of facts); Douglass v. Grays Harbor Fuel Co., 182 Wash. 227, 46 P.2d 733 (1935) (statement of facts filed more than 6 months after entry of judgment); Potts v. Nelson, supra (statement of facts filed 9 days late). As a consequence, the court liberalized the appellate procedure so that only this one act, the timely filing of a notice of appeal, is mandatory to secure appellate court jurisdiction.³

The retention of this one mandatory act does not appear to this court to be unreasonable. Were it otherwise, the number of reasons for the untimely filing of a notice of appeal is incalculable and the resultant inequities unascer-tainable. Furthermore, the rationale of Glass v. Windsor Nav. Co., 81 Wn.2d 726, 504 P.2d 1135 (1973), dealing with the premature filing of a notice of appeal, appears to us to be équally persuasive here where the notice was belatedly filed. The notice, not having been timely filed, does not vest this court with jurisdiction to hear this appeal.

Therefore, the motion must be granted and the appeal is hereby dismissed.

Green, C.J., concurs.

1 In its order adopting Civil Rules for Superior Court, 71 Wn.2d xvii (1967), the court, in its explanation of the rules, stated at page xxvi:

Comments. Where it appears that all or a part of a statute has been superseded by a Rule, a statement to that effect is included in the Comments. Statutes not superseded continue to be effective. The Comments also identify the sources of the Rules.

The only comment found within CR 58 states at 71 Wn.2d cxx:

Comment. Subdivisions (a) and (b) together with Rule 59(b) supersede 4.64.010.

2 It is noted that in The Federal Rules of Civil Procedure, Rules 58 and 79, a different definition of “entry of judgment” is made than in Washington State’s Civil Rules for Superior Court, Rule 58. See also 6A J. Moore, Federal Practice ¶ 58.02, at 58-56.

3 Justice William O. Douglas, dissenting in Aero Mayflower Transit Co. v. United States, 409 U.S. 905, 34 L. Ed. 2d 166, 93 S. Ct. 216 (1972), stated in part as follows:

“We held in United Public Workers v. Mitchell, 330 U.S. 75, 84-86, that the Rules of this Court determine the effect of untimely docketing. Only the filing of the notice of appeal is jurisdictional.” (Italics ours.)