Lane v. Pellissier

SHENK, J., Dissenting.

I dissent. It is a conceded fact in this case that at the time the appeal was taken the clerk’s record showed that the judgment was entered on September 12, 1928. The notice of appeal should therefore be held to have been filed in time. When the proceedings on motion for a new trial were commenced, to wit, on November 10, 1927, and on February 6, 1929, when the notice of appeal was filed, the register of actions contained the following entry: “1928, Sept. 12, Judgment entered, Docketed and Roll filed, Judgment Book 689, page 391.” It is not disputed that the judgment was copied at length in judgment-book 689, at page 391, in the form required by law. The motion of the respondents to cause the records to show that the judgment was entered on September 6, 1928, was noticed for March 4, 1929, and

[594]

was granted on March 20, 1929, which was long after the time for taking the appeal had expired. In other words, from September 12, 1928, until March 20, 1929, the records of the Superior Court in this action showed that the judgment was entered on September 12, 1928. Until this record was amended it imported absolute verity.

(Hahn

v.

Kelly,

34 Cal. 391 [94 Am. Dec. 742];

Bernhard

v.

Wall,

184 Cal. 612, 621 [194 Pac. 1020].) The official duties of the clerk in keeping the judgment-book and the register of actions are prescribed by sections 668 and 1052 of the Code of Civil Procedure. The presumption of regularity in the performance of those duties attached under subdivision 15 of section 1963 of the same code. This presumption and the face of the records of the clerk of the court are of paramount importance to lawyers and litigants, for they provide the test of jurisdiction of the appellate tribunal and the correctness of the record may not be disputed collaterally. (Ci

ty of Los Angeles

v.

Glassell,

203 Cal. 44, 49 [262 Pac. 1084].) The lawyer, the litigant, and the reviewing court are bound by such a record until it is modified or amended or impeached. The practitioner at the bar ought to be permitted to rely absolutely on such a record.