Woodward v. Perkins

• Decision Date: 04 June 1946
• Docket Number: 8595.
• Parties: WOODWARD et al. v. PERKINS et al.
• Court: Montana Supreme Court

171 P.2d 997

119 Mont. 11

WOODWARD et al. v. PERKINS et al.

No. 8595.

Supreme Court of Montana

June 4, 1946

Rehearing Denied Sept. 11, 1946.

Appeal from District Court, Third District, Powell County; R. E McHugh, Judge.

Action by Thomas E. Woodward and others against John E. Perkins and Albert Beck, as Water Commissioner of Dempsey Creek, to restrain defendant Perkins from taking and using water flowing in Dempsey Creek, wherein defendant Perkins filed a cross-complaint to have a new and additional water right established by decree. A judgment for plaintiffs was reversed, 116 Mont. 46, 147 P.2d 1016, and from a formal judgment and certain orders entered after the filing in trial court of the judgment of the Supreme Court defendants appeal. On plaintiffs' motion to dismiss the appeal.

Appeal dismissed.

S. P. Wilson, of Deer Lodge, for appellants.

W. E Keeley, and Maurice J. MacCormick, both of Deer Lodge, for respondents.

ADAIR Justice.

Upon the former appeal of this cause (Woodward et al. v Perkins et al., 116 Mont. 46, 147 P.2d 1016) this court reversed the judgment and remanded the case, with direction to the district court to enter judgment in accordance with our opinion. Defendants petitioned for rehearing and upon the denial of such petition the judgment of the Supreme Court was properly certified and remitted on May 5, 1944, to the District Court, where on May 10, 1944, it was filed in the office of the clerk of the trial court and, on the judgment docket of said court, against the original entry in the action, the clerk entered the following minute of the judgment of the Supreme Court, viz.: 'Judgment Reversed and case Remanded as per Remittitur filed May 10th, 1944. Entered May 10th, 1944. Ethel Evans, Clerk.'

Thereafter plaintiffs' attorney prepared a draft of proposed new findings of fact and conclusions of law which he served on defendants' attorney and delivered to the district judge 49 days after the filing of the remittitur in the office of the clerk of court.

On November 18, 1944, defendants' attorney served upon plaintiffs' attorney and filed in the office of the clerk of the District Court written objections to the proposed new findings and conclusions and also a motion for the dismissal of said action grounded upon subdivision 6, section 9317 Revised Codes, 'for that more than six months have elapsed since the verdict, decision and final submission of the cause and party entitled to judgment neglects to demand and have same entered.'

On December 20, 1944, the District Court (1) denied defendants' motion for dismissal of the action, (2) overruled defendants' objections to the proposed new findings of fact and conclusions of law and (3) signed and filed new findings of fact and conclusions of law in accord with the judgment on remand and mandate of the Supreme Court.

On December 30, 1944, a formal judgment in harmony with the new findings and conclusions and with the judgment and mandate of the Supreme Court was signed and filed.

On January 31, 1945, defendants served and filed a notice of appeal to the Supreme Court stating therein that the appeal is: (1) From the judgment 'rendered, entered and filed in said cause upon the 30th day of December, 1944,' (2) from the 'decision' of the District Court 'set forth in Findings of Fact, and Conclusions of Law, dated December 20, 1944,' (3) from the order of the District Court overruling defendants' objections to the proposed new findings of fact and conclusions of law, and (4) from the order of the District Court denying defendants' motion to dismiss the action.

Plaintiffs have interposed a motion to dismiss the appeal contending that no appeal lies from the judgment, or any order or act specified in defendants' notice of appeal.

Unless the order or judgment, which it is sought to have reviewed on appeal, falls fairly within the enumeration of appealable orders or judgments, provided by the statutes, the appeal does not lie. Section 9731, Revised Codes; In re Tuohy's Estate, 23 Mont. 305, 306, 58 P. 722; State ex rel. Jackson v. Kennie, 24 Mont. 45, 50, 60 P. 589; Taintor v. St. John, 50 Mont. 358, 362, 146 P. 939; Weed v. Weed, 55 Mont. 599, 600, 179 P. 827; In re Sullivan's Estate, 112 Mont. 519, 118 P.2d 383.

The order overruling defendants' objections to the proposed new findings and conclusions and the order denying defendants' motion to dismiss the action were made prior to the signing and filing of the judgment of December 30, 1944, and the new findings of fact and conclusions of law were also signed and filed prior to the filing of such judgment.

'A judgment is the final determination of the rights of the parties in an action or proceeding.' Sec. 9313, Rev.Codes. Findings of fact and conclusions of law made by the District Court are not its judgment but they are merely the foundation for a judgment (Galiger et al. v. McNulty et al., 80 Mont. 399, 260 P. 401), hence an appeal does not lie from the 'decision' of the District Court set forth in the findings of fact and conclusions of law 'rendered, entered and filed in said Court in the above Cause on the 20th day of December, 1944.' State ex rel. Reser v. District Court, 53 Mont. 235, 163 P. 1149, 1150; Conway v. Pabian, 108 Mont. 287, 89 P.2d 1022, 1028.

The order overruling and denying defendants' objections to the proposed new findings of fact and conclusions of law is not a final judgment nor is it an order from which an appeal may be taken.

The order denying defendants' motion to dismiss the instant action 'for the reason that more than six months has elapsed after the verdict, decision, judgment and final submission of the case, and before plaintiffs caused verdict, judgment, findings or decision to be entered and for the reason that plaintiffs * * * neglected to demand or have judgment entered for more than six months after the final submission of the cause' is not a final judgment nor is it an order from which an appeal may be taken. Compare Hovey v. Northern Pac. R. Co., 39 Mont. 40, 101 P. 146; and Couse v. Dietz, Mont., 159 P.2d 886, 889.

The pronouncement of judgment is a judicial act while its entry upon the record is merely ministerial. 1 Freeman on Judgments, 5th Ed., sec. 46, p. 75. The judgment takes effect from the time it is pronounced. Fresno Estate Co. v. Fiske, 172 Cal. 583, 157 P. 1127. The judgments of the Supreme Court are entered in that court by the clerk of the Supreme Court with whom the decision is filed who thereupon enters, in the minute book, a minute of the judgment and in the register of actions, a notation of the date of its pronouncement.

On April 15, 1944, this court handed down its written decision and pronounced its judgment on the appeal in this cause.

On May 5, 1944, the judgment of this court, properly certified by the clerk of this court to the clerk of the District Court of Powell county with whom the judgment roll is filed, was remitted to said District Court.

On May 10, 1944, the remittitur so issued out of this court with a copy of this court's opinion attached, was filed in this cause in the office of the clerk of the District Court and on that day the clerk of the District Court entered a minute of the judgment of the Supreme Court on the judgment docket against the original entry. By these acts the judgment of the Supreme Court was properly and legally entered in the District Court on May 10, 1944, and the requirements of section 8805, Revised Codes, providing that this court's 'judgment in appealed cases must be remitted to the court from which the appeal was taken' as well as the requirements of section 9753 were fully complied with to the letter. Nothing further or more formal is required to comply with the mandate of the statute and to effectively and legally enter, in the District Court, the appellate court's judgment on remand.

The decisions and judgments of the appellate court do not generally follow the form of judgments customarily given and filed in the trial courts and since it is the judgment of the appellate court that is entered in the District Court, some attorneys have made it a practice, on the filing of the remittitur, in cases where the judgment of the Supreme Court reverses or modifies the judgment of the District Court, to prepare and have signed and recorded, a formal 'judgment' complying with the judgment and mandate of the Supreme Court in the particular case. Such practice was followed by plaintiffs' attorney in having new findings of fact and conclusions of law as well as a formal judgment signed and filed in this case but this the statutes did not require of him and the fact still persists that this court's judgment had long before (to-wit on May 10, 1944) been duly and regularly entered. As is said in 1 Freeman on Judgments, 5th Ed., sec. 73, pp. 127 128: 'In considering some of the decisions in which the sufficiency of various entries of judgments has been questioned and determined, and the general principles which may be evolved therefrom, it is apparent that they are not altogether consistent. This arrises, perhaps, from the fact that some minds are deeply impressed with the importance of matters of form, and actuated by the dread of encouraging a loose and unlawyer-like practice; while others, paying little regard to technical considerations, are inclined to recognize and enforce that which, though confessedly informal, is capable of being readily understood and carried into effect. I think, however, that from the cases this general statement may be safely made: That whatever appears upon its face to be intended as the entry of a judgment will be regarded as sufficiently formal if it shows,--1. The relief granted; and 2. That the grant was made by the court in whose records...