Hahn v. Citizens State Bank

• Decision Date: 16 May 1918
• Docket Number: 922
• Citation: 171 P. 889,25 Wyo. 467
• Parties: HAHN v. CITIZENS STATE BANK, ET AL
• Court: Wyoming Supreme Court

171 P. 889

25 Wyo. 467

HAHN v. CITIZENS STATE BANK, ET AL

No. 922

Supreme Court of Wyoming

May 16, 1918

25 Wyo. 467 at 485.

Original Opinion of April 1, 1918, Reported at: 25 Wyo. 467.

Petition for rehearing denied.

POTTER CHIEF JUSTICE. BEARD, J., and BLYDENBURGH, J., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER CHIEF JUSTICE.

The motion to dismiss the appeal in this cause having been sustained (see 171 P. 889), the appellant has filed a petition for rehearing. The questions involved in the motion were very carefully considered and we see no reason for a different conclusion. The appeal was dismissed on the ground that the record failed to show that a judgment had been entered in the cause, and therefore that the notice of appeal was insufficient to give this court jurisdiction. The only showing of a judgment by the record, as stated in the former opinion, was a paper purporting to have been filed July 14, 1917, entitled "Judgment," signed by the trial judge, reciting the trial and verdict, which the record otherwise shows occurred on June 14, 1917, and concluding with a form of judgment upon the verdict, and a statement as to its date as follows: "Done in open court the 14th day of June, 1917." But there was not a transcript or copy of the journal entry of the judgment in the record, nor anything to show that the judgment had been entered. The statute under which the appeal was taken provides for taking an appeal by serving and filing a notice thereof "within ten days from the entry of the judgment or order appealed from." And the notice of the appeal in this case was filed and served on June 23, 1917. We held that an entry of the judgment was essential under the statute to support an appeal.

It is now suggested by counsel for appellant that the judgment order signed by the trial judge appears to have been filed on June 13, instead of July 14, as stated in the former opinion. It bears a filing indorsement signed by the clerk with the date of filing, "July 14," written with pen and ink. Above and partly over that date is a pencil notation "June 13." But we do not think the latter is to be understood as a change in the filing date. While there is nothing to show its purpose, we think it may have been intended to show the date under which the judgment was to be entered upon the journal, and that if it had been intended as a change in the date of filing such intention would have been made more clearly apparent. The paper could not have been actually or properly filed on June 13, for the case had not then been tried and was not in a condition for judgment. But it is unnecessary to conjecture what was intended by the pencil written date. Whenever filed that paper is insufficient to show an entry of the judgment, and is not the record evidence thereof for the reasons explained in the former opinion. In addition to the statutory provisions referred to in that opinion for entering judgments and orders upon the journal, it is further provided by the statute that the clerk of the District Court shall keep a journal (Sec. 4273, Comp. Stat. 1910); that he shall "keep the journals, records, books and papers appertaining to the court, and record its proceedings" (Sec. 4278); and that "orders made out of court shall be forthwith entered by the clerk in the journal of the court, in the same manner as orders made in term." (Sec. 4279.)

The general rule is that the record must show the rendition and entry of an appealable judgment, decree or order, so that the jurisdiction of the appellate court may appear (4 C. J. 45), and there is nothing in the so-called direct appeal statute making that rule inapplicable. On the contrary, the provision for taking an appeal by filing and serving a notice within a prescribed period from the entry of the judgment or order appealed from makes it clearly necessary that the record on appeal shall show the entry of the judgment or order, and that the notice of appeal was filed and served within the time prescribed. It seems now to be argued that the statute providing for the record on appeal and designating the judgment as one of the things to be included in the record does not require a journal entry of the judgment or any journal entries. But the statute does require that the judgment shall be included in the record, and since the record of a judgment is the entry thereof upon the journal of the court, it is clear, we think, that it does in effect require a copy or transcript of such journal entry. And this is made more certain, if that be possible, by the several provisions of the statute referring to the "entry" or the "date of the entry" of the order or judgment appealed from, for the purpose of fixing the time for taking the appeal, for filing the transcript of the testimony when requested, and for preparing and filing the record on the appeal.

In Ohio, from which state our code of civil procedure is taken under a statute requiring a party desiring to appeal a cause from the Court of Common Pleas to the Circuit Court to enter on the records notice of such intention within three days after the judgment or order is entered, it is held that the provision means that the notice must be entered on the records within three days after the judgment or order is entered on the journal. (Layer v. Schaber, 57 Ohio St. 234, 48 N.E. 939.) And that a memorandum of the trial judge on his docket of a notice of such intention to appeal is not a compliance with the statute because that is not an entering of the notice on the records of the court. (Moore v. Brown, 10 Ohio 197; Bank of Circleville v. Bowsher, 15 Ohio C.C. 114.) The Ohio Supreme Court has also gone to the extent of holding that, in order to create a judgment lien upon lands as of the first day of the term at which a judgment is rendered, the judgment must not only be pronounced, but it must also be entered on the journal during the term. And the court say: "It is true that the two words 'rendered' and 'entered,' in their strict use, bear a clear difference in meaning and intent. Giving to these words such signification, a judgment may be said to be 'rendered' by a declaration from...