I concur in the opinion of Justice DUCKER and in the order.
I am convinced the rule announced in that opinion to the effect that the written order should prevail over the minute entry is correct. This because of the fact that such rule conforms to the practice followed for many years and accorded recognition by the courts and the bar, that is to say: the solemn decree of a court, bearing the signature of the judge thereof, is recognized as the judgment of the court until changed by appropriate proceedings instituted therefor. I find nothing in the Nevada cases inconsistent with such a practice. There is no question but what the pronouncement by the court from the bench of a judgment is the rendition of the judgment by the court. But in this case we are not concerned with the question of when the judgment was rendered; we are concerned with what shall be accepted by this court as evidence of what judgment was rendered. As pointed out by Justice DUCKER, the cases of Gould v. Austin,52 Wash. 457, 100 P. 1029, and McFadden v. McFadden, 22 Ariz. 246,196 P. 452, hold that the written order or decree should control over the minute order. The case at bar is distinguishable from the case of Silva v. Second Judicial District Court, 57 Nev. 468,66 P.2d 422, just as Gould v. Austin and McFadden v. McFadden are distinguishable therefrom. The instant case and McFadden v. McFadden and Gould v. Austin are in one class, the Silva case in another. In the first the question of whether the written order or the minute order should be accepted in determining what the decision of the court was, and the second a proceeding seeking to make the decree speak the truth. There is nothing in the Silva case to the effect that the decree entered therein was not
binding until such time as corrected. Suppose in the Silva case, without any effort having been made to have the decree corrected, the parties, basing their request upon the minute order, the recollection of the judge and the notes of the reporter, had asked the trial court to enter an order changing the custody of the children and the court had refused to do so upon the ground that it had lost jurisdiction; that thereafter an appeal had been taken to this court and the contention made that the court retained jurisdiction, but the decree being silent thereon the appellant had offered to prove that such was the case, by the reporter's transcript, the recollection of the judge and the minute order. I apprehend that this court would have been compelled to rely upon the recitals of the decree, and that the proposals of the appellant would have been rejected. It seems manifest that the situation in the Silva case was so understood by the parties, who recognized that before the recollection of the judge as to his intention, the minute order and the reporter's notes could be given force and effect, a proper proceeding by motion in the trial court must be instituted to have the decree speak the truth in that respect. It is not to be understood that a statement in a decree or order if different from the actual pronouncement of the court must stand for all time, but it should do so until corrected by an appropriate proceeding, either upon motion of one of the parties or by the trial court upon its own motion. This latter procedure was sanctioned in the case of Gottwals v. Rencher, 60 Nev. 35, 47,92 P.2d 1000, 98 P.2d 481, 126 A.L.R. 1262. Until so corrected it is binding upon the parties. This is the rule laid down in Forker v. Hopkins, 64 Colo. 325, 171 P. 361, at page 362, and Bates v. Hall, 44 Colo. 360, 98 P. 3, 6. The fact that the Colorado cases were brought under a special statute relating to irrigation law does not, to my mind, detract from their value as authority. Decrees in water cases are no more solemn and binding than decrees in other proceedings. I think the reasoning employed in said
Colorado cases is sound and may be applied to all decrees and judgments. See Bancroft's Code Pleading and Remedies, vol. 3, page 2235, notes 3, 4, 5 and 6. It seems plain that failure to follow the rule that the written order is binding until changed would lead to much confusion. I agree with the statement in the case of Gould v. Austin, supra [52 Wash. 457, 100 P. 1030]: "there should be some standard in the record, to which reference may be made as the conclusive evidence of what has been actually decided. * * * That, when the court signs a written order, it shall be considered the evidence of its real and final act touching the subject immediately under consideration." The practice of filing written orders and written decrees signed by the judge, though not specifically required by statute, is a good one and should be encouraged. The best way to encourage such practice is to accord to such decrees and orders the recognition long practice has established.
I am further convinced that the remanding of the case to the trial court to fix a fee for the year 1942 is absolutely necessary. The order entered by the trial court attempting to fix such a fee being void there is nothing which transpired at the hearing on February 27 which we can legally consider as constituting such an order. The fixing of a fee lies with the trial court in the first instance, and until it has actually made a valid order this court has nothing on which to base a determination as to whether or not the trial court has abused its discretion.