State v. Capital City Bank.New England Nat. Bank v. First Nat. Bank of Santa F?.
Decision Date | 08 June 1926 |
Docket Number | No. 3146.,3146. |
Citation | 31 N.M. 430,246 P. 899 |
Parties | STATEv.CAPITAL CITY BANK.NEW ENGLAND NAT. BANKv.FIRST NAT. BANK OF SANTA FÉ. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In determining the time within which a cost bond must be filed, an order in writing signed by the district judge, allowing an appeal, becomes effective as the judgment of the court when the same is filed with the clerk, for entry in the record, and not on the date of the signing of the order.
Appeal from District Court, Santa Fé County; Holloman, Judge.
Receivership proceeding by the State against the Capital City Bank of Santa Fé, in which the First National Bank of Santa Fé was appointed receiver. From an adverse judgment on its claim, the New England National Bank appeals. On the receiver's motion to dismiss the appeal. Motion denied.
In determining time within which cost bond must be filed, order in writing signed by district judge, allowing appeal, becomes effective as judgment when it is filed by clerk, for entry on record, and not on date for signing of order; and, if such bond is filed within 30 days from taking appeal, appeal will not be dismissed. Laws 1917, c. 43, §§ 1, 3, 15; Code 1915, §§ 1357, 1405.
Mechem & Vellacott, of Albuquerque, for appellant.
E. R. Wright, of Santa Fé, for appellee.
An order allowing an appeal was signed by the district judge on January 16, 1926. This order was filed in the clerk's office for entry on January 18, 1926. The cost bond on appeal was filed with the clerk on February 17, 1926, being 32 days after the order allowing the appeal was signed by the district judge, and being just within the 30 days after the entry of the order. A motion has been filed by appellee to dismiss the appeal on the ground that the cost bond was not filed within 30 days “from the time of taking such appeal,” as is required by section 15, c. 43, Laws 1917. The question then is as to when this appeal was taken within the meaning of our Procedure Act (chapter 43, Laws 1917).
The right of appeal, generally, is regulated by section 1 of the Procedure Act, which is as follows:
“Within six months from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the Supreme Court of the state.”
This section clearly provides merely for the right of appeal and the time within which the right may be exercised It does not purport to provide the procedure whereby the right may be secured.
Section 3 of the act provides the procedure. It provides:
“Appeals, as in this act provided for, shall be allowed upon application to the district court in which the judgment, order, decision or conviction is rendered.”
It thus appears that the appeal is obtained, secured and effectuated by means of the order of allowance by the court. The order of allowance in this case, as before seen, was obtained on January 16, but was filed for record in the clerk's office on January 18. The ultimate question then is as to when this order of allowance of the appeal became the judgment of the court, when it was signed by the judge, or when it was filed by the clerk for entry on the record. It may be stated generally that the rendition and entry of the judgment are two separate acts, and different in their nature. “The rendition of the judgment is a judicial act; the entry upon the record is merely ministerial.” 1 Freeman, Judgments (5th Ed.) § 46; 15 R. C. L. “Judgments,” § 11; 34 C. J. “Judgments,” § 175; 1 Black on Judgments (2d Ed.) § 106.
As between the parties to the judgment, it is quite generally held that it is valid and enforceable, although not entered, unless provided otherwise by statute. 1 Freeman on Judgments (5th Ed.) § 46; 15 R. C. L. “Judgments,” § 16; 34 C. J. “Judgments,” § 182. We have two provisions of statute on the subject. The first is section 1357, Code 1915, which was section 3 of the article on clerks of courts of the Kearney Code, and is as follows:
“The clerks of the Supreme and inferior courts, and of the probate judges shall seasonably record the judgments, rules, orders and other proceedings of the respective courts and make a complete alphabetical index thereto. * * *”
This section provides simply for the duties of the clerks as to the entry of judgments and seems to attach no consequence to the failure to do so.
The other provision is different in scope. It is section 1405, Code 1915, and provides that the “journal or record of the court shall show all proceedings of the court.” This would seem to impose, not only upon the clerk, but also upon the court itself, the duty to see that the proper record is made of all judgments and proceedings, and would seem to imply that, until such record is made, there is no complete and effective judgment.
The cases from states having statutes similar to ours are collected in notes 57 and 58 to section 182, of 34 C. J. “Judgments,” a few of which will be noticed.
In Iowa the statute provides:
“All judgments and orders must be entered on the record of the court and must specify clearly the relief granted, or order made in the action.” Code 1873, § 2864.
In Case v. Plato, 54 Iowa, 64, 6 N. W. 128, it was held under this statute that it was essential to the validity of the judgment that it should be entered upon the record. This decision has been uniformly followed in that state.
In Ohio the statute provides that:
“All judgments shall be entered on the journals of the court.” Rev. St. 1890, § 5331.
In Coe v. Erb, 59 Ohio St. 259, 52 N. E. 640, 69 Am. St. Rep. 764, the court said:
In Smith v. Smith, 103 Ohio St. 391, 133 N. E. 792, the court said:
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