Lukich v. Utah Const. Co.

• Decision Date: 29 September 1916
• Docket Number: 2904
• Citation: 48 Utah 452,160 P. 270
• Court: Utah Supreme Court
• Parties: LUKICH v. UTAH CONSTRUCTION CO

160 P. 270

48 Utah 452

LUKICH v. UTAH CONSTRUCTION CO

No. 2904

Supreme Court of Utah

September 29, 1916

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Niko Lukich against the Utah Construction Company, a corporation.

Judgment for defendant, and plaintiff appeals.

AFFIRMED.

Weber &amp Olson, for appellant.

Howat MacMillan & Nebeker, for respondent.

FRICK J. McCARTY, J., STRAUP, C. J., concurring.

OPINION

FRICK, J.

This is the second appeal in this case. Lukich v. Utah Const. Co., 46 Utah 317, 150 P. 298.

The first appeal, upon respondent's motion, was dismissed upon the sole ground that it was premature; that is, it was brought before final judgment had been duly entered in the case. After the former appeal was dismissed a judgment was duly entered and a motion is now interposed by the respondent to dismiss this appeal: (1) Because the District Court had lost jurisdiction to enter judgment; (2) that no final judgment appears in the printed abstract; and (3) that the assignments of error do not appear in the printed abstract.

As before stated, the former appeal was dismissed upon respondent's motion upon the sole ground that no final judgment of dismissal had been entered after its motion for nonsuit was sustained. It is a universal rule that in case of appeal there must be record evidence showing that a final judgment was rendered and entered, or the appeal cannot prevail. We need not now inquire whether the appellant could or could not have perfected his former appeal under our statute. It is sufficient for the purposes of this decision to know that the appeal was dismissed upon the sole ground that it was prematurely brought. After the remittitur from this court had reached the District Court from which the former appeal was taken and in which the motion for nonsuit was granted in September, 1913, the appellant moved the District Court that it direct that a final judgment of dismissal be entered, which was accordingly done. This appeal is from that judgment.

It is now contended that inasmuch as the motion for nonsuit was made in September, 1913, and that an appeal was taken and dismissed, and that no final judgment was attempted to be entered until August, 1915, the District Court had lost jurisdiction of the cause and was powerless to enter judgment therein. We cannot see any reason for so holding. If the former appeal was premature, as we held it was, then there was in fact no appeal that could effectuate anything. We are of the opinion that the court did not lose jurisdiction to enter final judgment merely because the judgment was not entered immediately after the motion for nonsuit was sustained. Until a final judgment was entered the cause was not disposed of, and in one sense, therefore, it continued to be pending in the District Court for final disposition. Such disposition was not made until August, 1915, when the final judgment, which now is appealed from, was entered. We cannot see why the District Court did not possess the same power to enter judgment in August, 1915, that it had in September, 1913, when the motion for nonsuit was interposed, but no judgment was entered thereon and to that effect are the authorities. In Waters v. Dumas, 75 Cal. 563, 17 P. 685, a judgment was not entered until about four months had elapsed after it should have been entered, and that the California statute, which is the same as ours respecting the time judgment should be entered, was directory merely. In Edwards v. Hellings, 103 Cal. 204, 37 P. 218, judgment was not entered until eight years had elapsed, yet the Supreme Court of California held the judgment was properly entered. See also, Brady v. Burke, 90 Cal. 1, 27 P. 52. In Shephard v. Brenton, 20 Iowa 41, a judgment entered more than eighteen months after verdict was held proper and timely. To the same effect are Mountain v. Rowland, 30 Ga. 929, and Burnett v. State, 14 Tex. 455, 65 Am. Dec. 131. We are of the opinion, therefore, that the court had ample power to enter final judgment, and that in case it had refused it could have been compelled to do so.

It is, however, further insisted that we are without jurisdiction because the motion for nonsuit was made and sustained in September, 1913, and that all that was left undone was merely to enter final judgment. It is therefore contended that the judgment entered in August, 1915, was a mere nunc pro tunc entry which related back to the time when the motion for nonsuit was sustained, and that for that reason the time for appeal commenced to run in September, 1913, when final judgment should have been entered. No doubt there are jurisdictions in which it is held that such an entry of judgment, as between the parties, constitutes a nunc pro tunc entry. 2 Cyc. 796, 797. There are other cases in which it is held that where the belated entry merely constitutes an amendment of a judgment originally entered, such entry is merely a nunc pro tunc entry which relates back to the time the original judgment was entered and does not enlarge the time within which to appeal. Estate of Scott, 124 Cal. 671, 57 P. 654. Such, however, is not the case when no judgment has been entered. Our statute (Comp. Laws 1907, Section 3301) so far as material here, provides:

"An appeal may be taken within six months from the entry of the judgment."

That section was taken from the California Code of Civil Procedure, Section 939, and was incorporated into the Revised Statutes of Utah of 1898 as Section 3301. The Supreme Court of California, in 1888, in the case of Coon v. United Order of Honor, 76 Cal. 354, 18 P. 384, construed Section 3301, supra, and it is expressly held that in case a final judgment has not been entered, and an appeal for that reason fails, a judgment may be entered and the time within which an appeal must be taken runs from the actual entry of the judgment, and that such entry, for the purposes of appeal, may not be considered as a nunc pro tunc entry. In passing upon that point the Supreme Court of California there said:

"The rights of the parties in respect to an appeal are determined by the date of the actual entry of the judgment, and they cannot be affected by the entry of the judgment nunc pro tunc as of a prior date. The time to appeal begins to run from the time of the actual entry."

In view that our statute is taken from California that case is decisive of the question just discussed.

It is, however, also contended that the appeal should be dismissed because "the assignments of error do not appear in the abstract," and because the final judgment is not printed therein. The record discloses that the parties stipulated that the "abstract of record used in the former appeal * * * may be used in the present appeal." Appellant, therefore, prepared no new nor additional abstract. It is now contended that under the rules of this court appellant should have prepared an additional abstract in which he should have printed the assignments of error and the final judgment. The assignments of error that are relied on here are a verbatim copy of the assignments on the former appeal, all of which were printed in the abstract. All that the appellant would have accomplished by printing the last assignments of error would have been to print a duplicate of the former assignments. Since appellant was given the right to use his original abstract we cannot see why it was necessary for him to again print what was already contained in the original abstract. As a matter of course he was required to file new assignments of error, or, at least, to obtain permission to refile his old ones. He did that. We think the rule of this court was substantially complied with when appellant obtained leave to refile his original abstract which contained the assignments of error as filed in this case. Surely, neither the court nor respondent could have been benefited by reprinting the assignments of error. The object or purpose of the rule was subserved, since respondent was apprised of the errors appellant relied on so that it could answer them and could assign and file cross-errors if it desired to do so. It is true that the judgment is not printed in the abstract. It is, however, in the judgment roll, and the only reason it is not in the printed abstract is because no new abstract was printed after the judgment was entered, as before stated. The rule, however, does not, at least not in terms, make the failure to print the judgment in the abstract a cause for dismissing an appeal. Admitting, however, that under the rule the judgment should have been printed in the abstract, yet the rule is directory merely and was promulgated as a means of promoting the ends of justice and to aid or advance judicial administration. Moreover, in view of the stipulation before referred to, if the respondent did not waive its right to interpose this objection, yet the rules have been substantially complied with, and this is sufficient to withstand a motion to dismiss an appeal. The motion to dismiss the appeal, therefore, cannot prevail.

This brings us to the merits of the appeal. The plaintiff, who is a resident of Austria, brought this action to recover damages for the death of his son Mike Lukich who was employed by, and, it is alleged, was killed through the negligence of the defendant. At the conclusion of plaintiff's evidence the defendant moved for a nonsuit on various grounds, among others, that no negligence had been shown on the part of the defendant, that the deceased had assumed the risk of injury, and that he was guilty of contributory negligence, which was the proximate cause of his death.

The controlling facts, briefly stated, are, that in July, 1910 the defendant was engaged in making a somewhat extensive...