Haddock v. Jackson

• Decision Date: 01 February 1932
• Docket Number: 5764
• Citation: 51 Idaho 560,8 P.2d 279
• Parties: ROSS B. HADDOCK, Appellant, v. MAY JACKSON and ERNEST F. JACKSON, Respondents
• Court: Idaho Supreme Court

8 P.2d 279

51 Idaho 560

ROSS B. HADDOCK, Appellant, v. MAY JACKSON and ERNEST F. JACKSON, Respondents

No. 5764

Supreme Court of Idaho

February 1, 1932

APPEAL AND ERROR-EXCEPTIONS, WHEN DEEMED-PROBATE COURT-FINAL JUDGMENT, RENDITION-CORRECTION OF RECORD.

1. Where each ruling or order specified as error appeared in record along with praecipe requiring them, appeal held not dismissible though there was no reporter's transcript or bill of exceptions (C. S., sec. 6879).

2. Court has inherent power to amend record to conform to facts of case.

3. District court is authorized to require that record of probate court conform to facts of case.

4. Amending copy of docket entries by probate court to have record recite true date of judgment entry held not invalid as attempt to alter judgment entered.

5. Where probate court judgment was entered January 24th, and notice of appeal was served on January 21st, there was no "rendition" of judgment from which appeal could be taken; hence service of notice of appeal was a nullity (C S., sec. 7179).

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. D. H. Sutphen, Judge.

Action on a promissory note. Judgment for defendants and plaintiff appeals. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellant. Petition for rehearing denied.

Paul S Haddock, for Appellant.

The time in which an appeal may be taken having been thus set at thirty days after the rendition of judgment, let us see when a judgment is rendered. This court has held that a final judgment in a civil action is not rendered until after the entry thereof in the docket. (Dalton v. Abercrombie, 35 Idaho 290, 206 P. 1051.)

"A mere finding of a justice, not followed by a judgment, has been held insufficient to support an appeal." (35 C. J tit. "Justices of the Peace," sec. 408, p. 736.)

"A judgment or order is not final and appealable until it has been entered in the justice's docket." (35 C. J., tit. "Justices of the Peace," sec. 408, p. 736.)

"A premature appeal is as ineffectual as one taken after the time prescribed." (35 C. J., tit. "Justices of the Peace," sec. 424, p. 744.)

"It is not error for the district court, upon an appeal from a justice of the peace, to allow the transcript to be amended to show the rendition and entry of the judgment that was in fact entered." (Wilson v. Paxton, 7 Kan. App. 79, 52 P. 911.)

Leo M. Bresnahan, for Respondents.

There being neither a transcript of the proceedings had upon the trial nor a bill of exceptions in the case, and all papers and files in the case as certified here, not being a part of the judgment-roll or record provided by statute, they cannot be considered on the determination of the questions raised by the appellant. There is but one question which this court might consider, and that is the jurisdiction of the trial court to render the judgment. (Twin Falls Realty Co. v. Brune, 45 Idaho 579, 264 P. 382; C. S., sec. 6879, amended Laws 1925, chap. 9.)

LEE, C. J. Budge, Givens, Varian and Leeper, JJ., concur.

OPINION

LEE, C. J.

Plaintiff and appellant, Ross Haddock, secured a judgment against defendant and respondent, Ernest F. Jackson, in the probate court of Lincoln county. Jackson appealed to the district court. After denying Haddock's motions to dismiss for lack of jurisdiction, a trial de novo resulted in a judgment for Jackson. From that judgment, Haddock has appealed, complaining of the denials of his motions and the rulings of the trial court preliminary thereto. Respondent does not seek to defend upon the merits but contends that, in the absence of a reporter's transcript or bill of exceptions; there is nothing before the court for review.

Under C. S., sec. 6879, any interlocutory order, ruling or decision appearing upon the records and files in the action or minutes of the court are deemed excepted to and need not be embodied in a bill of exceptions but may be reviewed upon appeal as though settled in such bill of exceptions. Each ruling or order specified as error appears in the record along with the praecipe requiring them, fully satisfying the procedure outlined in Erickson v. Edward Rutledge Timber Co., 34 Idaho 754, 203 P. 1078, and Feenaughty Machinery Co. v. Turner, 44 Idaho 363, 257 P. 38.

Appellant contends that the judgment was rendered in the probate court on January 21, 1929; that it was not entered in the docket until January 24th; that notice of appeal was served January 21st, three days before there was anything to appeal from, and that the district court was, therefore, without jurisdiction to entertain any appeal whatsoever.

Pursuant to appellant's motion, the district court ordered the probate judge to transmit a certified copy of his docket entry. In an attempt to comply with the order, the probate judge transmitted to the court an instrument denominated "Certificate on Transmission of Record," wherein instead of certifying, he recited that "I herewith transmit a certified copy of my docket entry in said cause, said docket entry being hereto attached, marked 'Exhibit A' and made a part hereof. Said docket entry is the only docket entry made or entered in the Probate Court of Lincoln County, Idaho, in said cause, and was made after the filing on January 24, 1929, of the only judgment made or entered by me in said cause." The attached exhibit was, however, not, of itself, certified, but it showed the docket entry as of January 21st. Respondent moved to strike all the...