Netherton v. Frank Holton & Co.

• Decision Date: 20 October 1925
• Citation: 205 N.W. 388,189 Wis. 461
• Parties: NETHERTON v. FRANK HOLTON & CO. ET AL.
• Court: Wisconsin Supreme Court

189 Wis. 461

205 N.W. 388

NETHERTON

v.FRANK HOLTON & CO. ET AL.

Supreme Court of Wisconsin.

Oct. 20, 1925.

Appeal from Circuit Court, Walworth County; Chester A. Fowler, Judge.

Action by Claude O. Netherton against Frank Holton & Co., a foreign corporation, and another. Judgment for defendants, and plaintiff appeals. On motion to dismiss appeal. Motion denied.Moss, Olds & La Rue, of Chicago, Ill., for appellant.

Simmons, Walker & Wratten, of Racine, for respondents.

CROWNHART, J.

This cause comes before this court on a motion to dismiss the appeal from the judgment of the circuit court for Walworth county, on the ground that said appeal was not taken within the time prescribed by law.

It appears that judgment by the circuit court was ordered in favor of the respondents on June 19, 1924; that on July 2, 1924, the judgment in form was dictated by the attorneys for the respondent, and the same prepared and forwarded to the clerk of the circuit court for entry on July 5, 1924; that the clerk of the circuit court received and filed said paper on the 5th day of July, 1924; that the paper so received and filed bears date July 2, 1924; that on the 5th day of August, 1924, the clerk taxed the costs in said action and docketed the judgment therein in the judgment docket; and that in said judgment docket he gave the date of entry of the judgment as of July 2, 1924. It stands admitted that the signature of the clerk was not affixed to the judgment prior to July 5th, and there is no proof, other than the records here stated, when the signature was actually affixed to the judgment. The appeal was taken on August 4, 1925. The question before us, therefore, is whether or not judgment was entered in said cause prior to August 5, 1924.

Section 3039 of the Statutes provides that the time within which an appeal may be taken from a judgment of the circuit court to the Supreme Court “is limited to one year from the date of entry of such judgment,” irrespective of the time when the costs are taxed.

The statutes require the clerk of the circuit court to keep a “court record” wherein he should enter a complete history of the case, and enter the volume and page of the record of judgments, where any judgment has been entered (section 59.39 [2]); to keep a book to be called a “judgment and order book” and to record therein all judgments (section 59.39 [5]); to enter the judgment in the judgment book, specifying clearly the relief granted or other determination of the action (section 2897); immediately after entering the judgment, to make up a judgment roll (section 2898); and, at the time of filing the judgment roll, to enter the judgment in the judgment docket, among other things giving the date of the entry of the judgment, and the day and hour of the entry of the judgment on the docket (section 2899).

[1] It is established by competent proof that the clerk did not make any of the entries so required, save the entry on the judgment docket, and that the entry on the judgment docket giving the date of the entry of the judgment was not true in fact. There is a presumption of regularity of official acts, but it is only a presumption, which fails when rebutted by clear and satisfactory proof. From the records in this case we have no proof that the judgment was signed or entered prior to August 5, 1924. The cause was not entered on the court record. It was nowhere indexed, and the files of the case were not kept in the vaults, but were found mislaid on top of the vaults, wrapped in an unmarked paper. It does not appear that any judgment roll was ever prepared by the clerk.

[2] The authorities generally make a distinction between rendition of a judgment and the entry of a judgment; the rendition of a judgment being the official pronouncement of judgment by the court, and the entry of a judgment being the ministerial act by the clerk. 1 Freeman on Judgments (4th Ed.) § 38; 1 Black, Judgments, § 106; 7 Words and Phrases, p. 6083; 23 Cyc. 835; 15 Ruling Case Law, p. 578. In Haseltine v. Simpson, 61 Wis. 431, 21 N. W. 300, this court said:

“To construe this or similar statutes of limitation, too much stress must not be given to such words as ‘rendition’ or ‘entry,’ as applied to the judgment. In section 3039, R. S., both of these terms are used to designate the same time. The time of appeal or writ of error ‘is limited to two years before the entry of such judgment, except when...