Hoffman-Bruner Granite Co. v. Stark

• Decision Date: 12 July 1906
• Citation: 108 N.W. 329,132 Iowa 100
• Parties: HOFFMAN-BRUNER GRANITE CO. v. STARK.
• Court: Iowa Supreme Court

132 Iowa 100

108 N.W. 329

HOFFMAN-BRUNER GRANITE CO.

v.STARK.

Supreme Court of Iowa.

July 12, 1906.

Appeal from District Court, Linn County; Wm. G. Thompson, and B. H. Miller, Judges,

Action to recover the purchase price of a monument. Defense, a general denial. Verdict for defendant, and plaintiff appeals. Defendant also appeals from a ruling upon a motion to correct the record in the court below. Plaintiff will be called “appellant.” Reversed on defendant's appeal. Plaintiff's appeal dismissed.C. W. Bingham, for appellant.

Voris & Haas, for appellee.

DEEMER, J.

We do not find it necessary to consider the case attempted to be presented by plaintiff on its appeal, for reasons which will hereinafter appear. After verdict for defendant, plaintiff filed a motion for a new trial, and upon the judge's calendar or memorandum book is found the following entry: “Dec. 14, 1904. Motion for new trial overruled. Plaintiff excepts. Judgment on the verdict for costs against plaintiff. Clerk assess.” Of record under date of December 14, 1904, appears a judgment entry in accord with this direction. Plaintiff served notice of appeal December 19, 1904. Thereafter, and on September 2, 1905, defendant filed a motion in the district court to correct the record, and after hearing that motion the trial court made the following finding and order, which was duly entered of record: “The court, being fully advised and satisfied in the premises, finds the facts as follows: That on the 17th and 18th days of November, 1904, at the regular November, 1904, term of this court, there was a trial to a jury in the said cause, resulting in a verdict for the defendant, which verdict was returned into court on the 19th day of November, 1904. That thereafter plaintiff filed a motion for a new trial, which motion was overruled by the court at said November term, on the 14th day of December, 1904, as shown by the minutes on the judge's calendar, and judgment ordered against plaintiff for costs; said entry in the judge's calendar being as follows: ‘Dec. 14, 1904. Motion for new trial overruled. Plaintiff excepts. Judgment on the verdict for costs against plaintiff. Clerk assess.’ That the clerk made no actual entry in the district court record, pursuant to said order contained in the judge's calendar, until on or about the 15th day of February, 1905, at which time the said minutes were written up, extended, and formally entered and spread upon the district court records, as appears in volume 28, on pages 36 and 37 thereof. That prior to the 15th day of February, 1905, the only evidence of said judgment appeared in the minutes on said judge's calendar, except an entry in the combined appearance docket, judgment docket, and fee book, in the following words and figures: ‘Judgment rendered against Hoffman-Bruner Granite Co. Date of judgment. Dec. 14th, 1904. Costs. $34.50’--and on the lien index. That the district court record, as made up by the clerk for said November, 1904, term, had not yet been signed and approved by any judge at the time this motion was submitted. That the record of said judgment as entered, and as appears in said volume 28, at the pages aforesaid, was made by the clerk as of the date of the minutes on the judge's calendar. The foregoing is regarded as established by the evidence introduced, if the same is competent to dispute the recitals of the record itself; if not competent, then such facts are not established. The court concludes, as a matter of law, that it is the duty of the clerk to enter judgments as in this case, as of the date appearing upon the minutes of the judge's calendar, and although the clerk in this instance did not in fact extend the minutes and enter and spread the judgment upon the district court record until February 15, 1905, it was his duty to make the entry of judgment as of date December 14, 1904, the date when the judgment was ordered by the judge. The judgment record therefore speaks truly, and no error or mistake is shown, and therefore there is nothing to correct. Accordingly the defendant's motion to correct judgment herein is overruled. To which ruling the defendant excepts.” From this defendant appeals, and he further insists that we have no jurisdiction of plaintiff's appeal.

It is a well-recognized rule of this court that an appeal will not lie from the judgment of an inferior court until that judgment has been entered of record; in other words, that there is no appealable judgment until it is entered of record. Kennedy v. Bank, 119 Iowa, 123, 93 N. W. 71;Martin v. Martin, 125 Iowa, 73, 99 N. W. 719;Stutsman v. Sharpless, 125 Iowa, 335, 101 N. W. 105; See, also, Callanan v. Votruba, 104 Iowa, 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am. St. Rep. 538;Balm v. Nunn, 63 Iowa, 643, 19 N. W. 810. And the rule is just as well settled that the memorandum made by the judge on his calendar is neither a judgment nor the entry thereof. See cases last above cited. The abstract of a judgment is not an appealable judgment, and of course the index thereof is not. See same cases and Case v. Plato, 54 Iowa, 64, 6 N. W. 128;Baxter v. Pritchard, 113 Iowa, 422, 85 N. W. 633;Winter v. Coulthard, 94 Iowa, 312, 62 N. W. 732;Moore v. McKinley, 60 Iowa, 367, 14 N. W. 768. When we find a judgment of court duly entered of record, we must for the purposes of appeal, unless there be something to the contrary which we may properly consider, treat the date given for the rendition of the judgment as the corrcct one. DeWolfe v. Taylor, 71 Iowa, 648, 33 N. W. 154;Gardner v. Railroad, 68 Iowa, 588, 27 N. W. 768;Buck v. Holt, 74 Iowa, 294, 37 N. W. 377. Ordinarily the clerk, when entering a judgment of record, should follow the memorandum made by the judge on his calendar, not only with reference to the substance thereof, but also...