Athey v. Oregon Short Line R. Co.

• Decision Date: 03 April 1917
• Parties: A. W. ATHEY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

165 P. 1116

30 Idaho 318

A. W. ATHEY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 3, 1917

APPEAL AND ERROR-PREMATURE APPEAL-EVIDENCE-ESTOPPEL-PUBLIC OFFICERS-APPEARANCE.

1. Under the existing statute an appeal from the district court to the supreme court, taken prior to the entry of the judgment in the judgment-book, does not confer jurisdiction upon the supreme court, and will be dismissed.

2. The transcript containing the record on appeal imports verity and is the conclusive evidence of the proceedings in the lower court.

3. Any memorandum of the date of entry of judgment made by the clerk of the district court without authority of law has no standing as evidence of the date of entry of judgment.

4. The memorandum in the judgment docket of the date of the entry of judgment being the only record thereof provided by law, and the judgment docket entries not being properly part of the record on appeal, there is no authentic evidence of the date of entry of judgment in the record.

5. It is the statutory duty of the clerk of the district court to enter the judgment in the judgment-book and make up the judgment-roll prior to making the entries in the judgment docket, and when it appears that the entries in the judgment docket have been made a prima facie presumption arises that the clerk has done his duty and that the judgment has actually been entered in the judgment-book.

6. Neither the testimony of the clerk of the district court nor that of his deputy will be admissible to impeach the presumption of the regularity of their official acts; other evidence may be received for such purpose.

7. An appellate court can only derive its jurisdiction from the constitution and statutes of the state, and therefore, in the absence of actual fraud, there can be no estoppel to deny its jurisdiction.

8. A stipulation between the attorneys made during the time in which an appeal could properly have been taken, extending the time in which to file briefs, is not such an appearance as would confer jurisdiction upon the appellate court.

[As to validity and enforceability of stipulation between parties fixing venue of action in particular county, see note in Ann.Cas. 1912C, 815]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Motion to dismiss on the ground that appeal was taken prematurely. Motion sustained and appeal dismissed.

Appeal dismissed. Costs awarded to respondent. Petition for rehearing denied.

H. B Thompson and Karl Paine, for Appellant.

The record filed for the purpose of appeal imports absolute verity. (4 Corpus Juris, sec. 2242, p. 496; In re Pichoir's Estate, 139 Cal. 694, 70 P. 213, 215, 73 P. 604.)

The affidavits of counsel and the deputy clerk of the district court are no proper part of the record, will not be considered and will be stricken on motion. (Williams v Boise Basin Min. etc. Co. 11 Idaho 233, 81 P. 646; In re Paige's Estate, 12 Idaho 410, 86 P. 273; Orange Growers' Bank v. Duncan, 133 Cal. 254, 65 P. 469; Johnston v. Callahan, 146 Cal. 212, 79 P. 870.)

"An appellate court may obtain jurisdiction on appeal as well by voluntary appearance by an adverse party as by the service of a notice of appeal upon him." (Bell v. San Francisco Sav. Union, 153 Cal. 64, 94 P. 225; Moore v. Koubly, 1 Idaho 55; Planters' Trading Co. v. Moore, 7 Ala. App. 393, 62 So. 302.)

V. P. Coffin and Harry Keyser, for Respondent.

The language of sec. 4807, Rev. Codes, using the term "entry of such judgment" refers to entry in the judgment-book as prescribed by sec. 4454 (Durant v. Comegys, 3 Idaho 67, 35 Am. St. 267, 26 P. 755); and since sec. 4807 says that the appeal may be taken within a given time after such entry, it has become the settled rule of all states having the same statutes that an appeal taken before such entry is premature, and will be dismissed on motion. (McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal. 43; Coon v. Grand Lodge, 76 Cal. 354, 18 P. 384; In re More's Estate, 143 Cal. 493, 77 P. 407, and cases cited; Hoffman-Bruner Granite Co. v. Stark, 132 Iowa 100, 108 N.W. 329; Greenly v. Hopkins, 7 S.D. 561, 64 N.W. 1128; Vollmer v. Nez Perces County, 7 Idaho 302, 62 P. 925; Santti v. Hartman, 29 Idaho 490, 161 P. 249, and cases cited; Yeomans v. Lamberton, 29 Idaho 801, 162 P. 674.)

It is the duty of the appellant to see to it that the judgment is entered in the judgment-book before taking his appeal, and if the clerk neglects to enter the judgment as the law requires, either party who desires to have it entered can compel him to do so by writ of mandate. (Oliver v. Kootenai County, 13 Idaho 281, 284, 90 P. 107; Santti v. Hartman, supra.)

Anything inserted in the record gratuitously by the clerk without authority of law is not a record, nor any part of a record. If such notation is entitled to any consideration whatever as evidence, it is evidence only of that which the person who made it intended by it. (In re Pearson's Estate, 119 Cal. 27, 50 P. 929; In re More's Estate, 143 Cal. 493, 77 P. 407, 409.)

Stipulation cannot be allowed to confer jurisdiction upon the supreme court where the necessary jurisdictional facts do not exist. (Penny v. Nez Perces County, 4 Idaho 642, 43 P. 570; Anderson v. Halthusen M. Co., 30 Utah 31, 83 P. 560.)

The facts which give jurisdiction to the appellate court, and divest the jurisdiction of the trial court, as the fact that the appeal was taken within the statutory period, cannot be presumed, but must affirmatively appear upon the record. (In re More's Estate, supra.) The statutes limiting the time to appeal are jurisdictional and mandatory. (Williams v. Long, 130 Cal. 58, 80 Am. St. 68, 62 P. 264; Estate of Brewer, 156 Cal. 89, 103 P. 486; Moe v. Harger, 10 Idaho 194, 77 P. 645.)

RICE, J. Morgan, J., concurs. Budge, C. J., sat at the hearing, but took no part in the decision.

OPINION

RICE, J.

This action was brought in the district court of the third judicial district, in and for Ada county. The case was tried before a jury and a verdict in favor of the plaintiff was rendered on Feb. 10, 1916. The judgment was signed by the judge and filed with the clerk on February 11, 1916. On February 15, 1916, an appeal was taken and perfected. The matter comes up at this time on motion to dismiss the appeal.

The grounds for dismissal are that the appeal was taken prior to the actual entry of judgment in the judgment-book as required by sec. 4807, Rev. Codes, as amended by chap. 80, Sess. Laws, 1915. In support of his motion to dismiss the appeal, the respondent has filed three affidavits of Thomas E. Powell, deputy clerk of the district court; also the affidavit of V. P. Coffin, attorney for respondent. In opposition to this motion the appellant has filed the affidavit of Karl Paine, an attorney for appellant; also affidavits of Otto F. Peterson and Cleo J. Schooler, senior deputy and deputy clerk of the district court.

Appellant does not admit that the judgment was entered subsequent to the appeal, and relies upon the entry in the judgment docket in the office of the clerk of the district court and upon the certified copy of the record of the judgment in the judgment-book, which contains the following notation: "Entered February 11, 1916."

It must be taken as settled law in this state that an appeal taken prior to actual entry of the judgment in the judgment-book must be dismissed. (Vollmer v. Nez Perces County, 7 Idaho 302, 62 P. 925; Santti v. Hartman, 29 Idaho 490, 161 P. 249; Yeomans v. Lamberton, 29 Idaho 801, 162 P. 674.)

The transcript containing the record filed for the purpose of appeal imports absolute verity. It is the sole, conclusive and unimpeachable evidence of the proceedings in the lower court. (Oklahoma Fire Ins. Co. v. Kimpel, 39 Okla. 339, 135 P. 6; 4 Corpus Juris, 512.)

The question that concerns us here is not only the fact of the date of entry of judgment, but also the proper evidence of that fact. What constitutes the record on appeal from a final judgment is determined by Rev. Codes, sec. 4818, as amended 1911 Sess. Laws, p. 375, and sec. 4456, as amended 1909 Sess. Laws, p. 76. The law nowhere seems to provide for the authentic date of entry of judgment appearing upon any of the papers specified in these sections as constituting the record on appeal. Therefore, any date appearing thereon purporting to be the date of entry of judgment is without authority of law, and has no standing as evidence of that date. The law does, however, provide that the clerk must make the proper entries in the judgment docket, among which is specified the date of entry of the judgment. (Rev. Codes, sec. 4457, as amended Sess. Laws 1913, p. 91, and sec. 4458.) The law does not provide that entries upon the judgment docket shall constitute any part of the record on appeal. Records and papers improperly included in a judgment-roll on appeal will be stricken on motion. (Williams v. Boise Basin Mining etc. Co., 11 Idaho 233, 81 P. 646.)

Sections 4450, 4454, 4456 (amended 1909 Sess. Laws, p. 76), 4457 (amended 1913 Sess. Laws, p. 91), 4458 and 4459, Rev. Codes determine the statutory duty of the clerk after rendition of a judgment or verdict. From these sections it appears that after a judgment or verdict is rendered and filed, the clerk's first duty is to enter the judgment at length in the judgment-book. Immediately after entry in the judgment-book it is his duty to fasten together papers constituting the judgment-roll. Immediately after making up the judgment-roll it is his duty to make proper entry in the judgment docket. When the entry in the judgment docket is made prior to the appeal, it will be presumed...