State v. Allen, 1606

• Decision Date: 24 June 1930
• Docket Number: 1606
• Citation: 288 P. 1058,42 Wyo. 51
• Parties: STATE, FOR USE OF FREDERICK v. ALLEN, ET AL. [*]
• Court: Wyoming Supreme Court

288 P. 1058

42 Wyo. 51

STATE, FOR USE OF FREDERICK v. ALLEN, ET AL. ^[*]

No. 1606

Supreme Court of Wyoming

June 24, 1930

APPEAL from District Court, Big Horn County; PERCY W. METZ, Judge.

Action by the State, for the use of Anna E. Frederick, as administratrix of the estate of George William Allen deceased, against John D. Allen and the National Surety Company of New York. From the judgment, plaintiff appeals.

Heard on motion of respondent to dismiss the appeal, and later on application to withdraw record for correction and amendment.

Motion to dismiss and application to withdraw record for correction denied.

For the respondents motion to dismiss, there was a brief and oral argument by C. A. Zaring, of Basin, Wyoming.

A notice of an appeal filed prematurely is ground for dismissal. Fertile Valley Canal Co. v. Kearney et al., 37 Wyo. 475. The record here and affidavits submitted show conclusively that the judgment in question was not entered until the 29th day of May, 1929, whereas the notice of appeal as shown by the record was served and filed prior to the entry of judgment. The appeal should therefore be dismissed.

For the appellant and in resistance of the motion there was a brief by William C. Snow, of Basin, Wyoming.

The record shows that the judgment was entered May 29th, 1929 and that notice of appeal was served and filed June 7th 1929. The appeal record cannot be contradicted by affidavits that are no part of the record itself. Hahn v. Citizens State Bank, 25 Wyo. 467-78; Van Horn v. State, 5 Wyo. 501; C. S. 1920, Sec. 1020. Even though the record was silent as to the date, the judgment was entered, the presumption is that the rendition date is the entry date. The motion should be denied. The application made by respondents for an order permitting the return of the appeal record to the District Court with directions for its correction should be denied. It is not contended that any part of the record of the lower court has been omitted from the transcript filed here on appeal. What is sought, is to have the original record amended, and then a transcript thereof recertified to this court. The District Court cannot amend the record after the term has passed, from memory, and in the absence of some record, note, entry or minute, of the court on which to base it. Callahan vs. E. O. Houck & Co., 14 Wyo. 201. The court below cannot amend its record after the term has passed. An appeal record cannot be amended from memory, or recollection of witnesses. The application is in the nature of a plea in abatement. 21 R. C. L. 540; American Express Co. v. Haggard, 37 Ill. 465, 87 Am. Dec. 257. As to the respondent's third motion, that the record be remanded to the clerk below, with directions to make such proper amendments or corrections therein as may be necessary, in order that said record may show the date on which the judgment was entered, is in fact, the same as the second motion, and should be denied. Childress v. Carley, 131 A. S. R. 546. The presumption is that a judgment was entered on the date it was rendered. Coffee v Harris, 27 Wyo. 397; Thomas v. Biven, 32 Wyo. 511; Barnett v. Finance Co., 38 Wyo. 513. Unless the contrary be shown by the record. Goodrich v. Bank, 26 Wyo. 42-5; Childress v. Carley, supra. The distinction on appeal between an entry and a rendition, has been abolished by statute. Bradshaw v. Brady, (Ia.) 161 N.W. 195; Western States Co. v. Hurst, 237 P. 1107; Aspegrau v. Sherwood, (Calif.) 250 P. 400; Amazon Co. v. Moorwood Co., (Ohio) 142 N.E. 363. The clerk has until the first day of the succeeding term within which to make up the appeal record. 5902 C. S.; French v. Co., 241 P. 1010. A judgment is entered when signed and filed by the clerk. Quarles v. City of Seattle, 66 P. 389, (Wash).

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This cause is before the court upon a motion of the respondents to dismiss the appeal. The ground of the motion is in substance that the judgment of the District Court, sought to be reviewed and which was "given and signed by the District Judge" on May 29, 1929, was not entered and recorded in the office of the clerk of the District Court of Big Horn County until June 27, 1929, and hence the notice of appeal, which was served and filed in the office of said clerk on the 7th day of the month last mentioned, was prematurely given and filed.

Upon an inspection of the record we find that the certified copy of the judgment shows it to conclude with the words "done in open court on this 29th day of May, 1929," followed by the signature of the judge who tried the case. The certificate of the clerk of the District Court attached to the judgment also discloses that the judgment was "entered in Court Journal No. 9 on page 630 under date of May 29th, 1929."

Under repeated decisions of this court, it has been held that in the absence of any affirmative showing in the record as to the date when a judgment was entered upon the journal of the District Court, and in the event there is nothing to show it was not entered upon the date it was given, it will be presumed that it was entered upon that date. See Hahn v. Bank, 25 Wyo. 467, 171 P. 899, 891, 172 P. 705; Coffee v. Harris, 27 Wyo. 394, 197 P. 649; Thomas v. Bivin, 32 Wyo. 478, 235 P. 321. Further, it is to be observed that this court said, in the case of Hahn v. Bank, supra:

"We suppose it to be the custom to enter a judgment or order upon the journal as of the date or as a part of the proceedings of the day it was rendered or made or the decision or order was signed by the judge, notwithstanding that the entry is not actually made in the journal until after that date. And that we think is proper. (Hoffman-Bruner Granite Co. v. Stark, 132 Iowa 100, 108 N.W. 329; Puckett v. Gunther, 137 Iowa 647, 114 N.W. 34.) And it will be presumed that an entry was made on the date under which it appears in the journal, unless the contrary is shown by the entry itself or by the record otherwise."

Upon the face of the record, as it now stands, it would clearly appear that the application of the doctrine of these cases here would require the denial of the motion to dismiss.

But attached to that motion we find several affidavits which purport to give the testimony of the clerk and his assistant, that the judgment aforesaid was not actually written upon the journal of the court until June 27, 1929. There is also the affidavit of counsel, likewise attached to the motion, that he examined the court journal shortly after the notice of appeal was served upon him on June 7, 1929, when he discovered that the judgment had not been entered on the journal. It is said we are to regard these affidavits questioning the record, in the disposition of this motion. In Van Horn v. State, 5 Wyo. 501, 40 P. 964, this court, speaking of that part of the record included in a bill of exceptions, said:

"The judge must include in the bill of exceptions all matters not a part of the record in order to make them of the record, and neither counsel nor the clerk of the court may do this.

"It would be a loose and a dangerous practice to supply omissions in the bill by affidavits of the counsel or others, and the statute does not permit it. What is not made by the statute a part of the record of the trial court, must go in the bill and be identified by the judge of the court, the same as the other records are. We can not suspend the statute or the rule in order to let into the record matters not embodied or referred to there, unless, perhaps, by consent."

And in Hahn v. Bank, supra, discussing the same point relating to a record on appeal, it was also remarked:

"This court, in its consideration of the case, is confined to the record on appeal; and we do not think it competent to show merely by affidavits filed in this court the fact that the judgment or order appealed from was or was not entered or when the entry thereof was made, thereby contradicting or supplying a deficiency in the record in that respect."

Several weeks after the motion to dismiss was argued and submitted, respondents filed in this court an application for an order permitting the withdrawal of the record on appeal for correction and amendment. The ground of the application appears to be substantially that of the above described motion to dismiss, and the application is supported by the affidavits of the clerk and his assistant, similar in purport with those previously executed by them, and heretofore referred to as attached to the motion. This application is doubtless made pursuant to the suggested practice in Hahn v. Bank, supra, where this court said:

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