Thomas v. Anderson

Morrison, C. J.: Respondents move the Court to dismiss the appeal in this case, on the ground that no judgment has been entered in the Court below. It appears from the transcript that the case was tried before the Court, and when the Judge filed his findings of fact, the following entry was made by the Clerk in Minute Book F, page 103: “ In this case, heretofore tried and submitted, the Court gives judgment for defendants, October 13th, 1879.”

On the 16th day of December, 1879, plaintiff gave notice of his motion to move for a new trial, and on the 2nd day of February, 1880, the following entry was made in the case :

“ Title of Court and Cause. The plaintiff moves the Court for a new trial on the ground specified in his notice of motion on file. The motion is submitted, and is denied. Plaintiff excepts.” (Minutes of Court, February 2nd, 1880, Book I, p. 22.) ' Thereupon plaintiff filed his notice of appeal from the so-called judgment and the order denying his motion for a new trial. It is claimed, on behalf of the respondents, that no judgment has been entered in the case; that the appeal has been prematurely taken, and should, therefore, be dismissed.

Section 670 of the Code of Civil Procedure provides, that immediately after entering judgment, the Clerk must attach together and file the following papers, which constitute the judgment roll:

“ 1. In case the complaint be not answered by any defendant, the summons with the affidavit or proof of service, and the complaint with a memorandum indorsed thereon that the default of the defendant in not anwering was entered, and a copy of the judgment.

“ 2. In all other cases, the pleadings, a copy of the verdict of the jury or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment."

It will be observed that whether judgment is entered by default, or after trial, a copy of the judgment is a part of the judgment roll.

By § 661 of the same Code, it is provided that “ the judgment roll and the affidavits or bills of exceptions, or statement, as the case may be, used on the hearing, with a copy of the order [45]made, shall constitute the record to be used on appeal from the order granting or refusing a new trial, unless the motion be made on the minutes of the Court, and in that case the judgment roll, and a statement to be subsequently prepared, with a copy of the order, shall constitute the record on appeal.” In all cases on appeal, the judgment roll shall appear in, and constitute a part of the record.