Marshall v. Taylor
Before: Paterson
Synopsis
Dismissal of Action — Neglect to Enter Judgment for Six Months — Payment of Costs. •—■ A motion to dismiss an action upon the ground that the plaintiff entitled to judgment has neglected for more than six month after the rendition of the verdict to demand and have the judgment entered is properly denied, where it appears that the plaintiff paid to the clerk the costs of the action immediately after the verdict, and presented him with a form of the judgment to be entered. In such case, the party asking to have the judgment entered has a right to rely upon the assumption that the clerk will make the entry, as required of of him by-section 664 of the Code of Civil Procedure.
Id. —Notice of Non-entry of Judgment—Certificate to Transcript upon Appeal — Bill of Exceptions — Estoppel. — A certificate of the clerk to the transcript upon appeal, that no judgment had been entered upon the verdict, cannot be used as notice to charge the respondent with neglect in not having had the judgment entered until service of notice of a motion to dismiss the action; and the appellant is estopped from using it for such purpose, when the appeal is both from the judgment and from an order denying a new trial, and his bill of exceptions states that the judgment was entered immediately after rendition of the verdict, and that the judgment was introduced in evidence upon the hearing of the motion for a new trial.
Id.—Entry of Judgment Nunc pro Tunc — Record Evidence — Delay for More than Six Months. — The pleadings, the minutes of the court, and the verdict in an action are sufficient record evidence to sustain the action of a court in ordering an entry of a judgment nunc pro tunc, although more than six months have elapsed from the rendition of the verdict.
Id.—Judgment upon Verdict —Delay of Clerk — Neglect of Ministerial Duty. —The fact that the delay to enter the judgment upon the verdict was the delay of the clerk, and'not of the court, does not affect the right to have the judgment entered nunc pro tunc. The verdict is equivalent to findings by the court, and section 664 of the Code of Civil Procedure is equivalent to an express direction by the court ,to the clerk to enter the judgment, whose ministerial duty it is to enter the judgment as required by statute.
Id. — Neglect to Enter Rendered Judgment — Lapse of Time. —Where the trial court has rendered a judgment in an action, hut the same has not been entered on the record, whether in consequence of the neglect of the court, or neglect or misprision of the clerk, an order may properly be made that the judgment rendered be entered nunc pro tunc, without regard to the lapse of time, where third persons are not injured thereby.
Paterson, J. Plaintiff recovered a judgment against the defendant in the court below for the sum of twenty-five thousand dollars damages on December 18, 1890. On that day her counsel gave to the clerk the form of judgment, and paid him the costs of the action. The verdict was duly recorded, and the judgment was filed, but was not entered. In due time the defendant moved for a new trial. The motion was denied, and the defendant appealed on June 26,1891. The notice of appeal served upon the plaintiff states that the defendant appeals to the supreme court from the final judgment given, made, rendered, and entered in the cause on December 18, 1890, and also from the order of June 12,1891, denying defendant’s motion for a new trial therein. The transcript on appeal was served upon respondent on August 25, 1891, and contains a certificate of the clerk, which states that no judgment has ever been rendered or entered in the action. On December 9, 1891, the [425]appellant served upon respondent a notice of motion to dismiss the action upon the ground that the plaintiff had neglected for more than six months after the rendition of the verdict 1o demand or have entered a judgment thereon. Abom ihe same time, plaintiff served the defendant with notice of motion to have judgment entered “as of the date the eighteenth day of January, 1890 .” The motions were heard together. The motion of the defendant for a dismissal of the action was denied, and the motion of plaintiff “ for an order directing the clerk to enter judgment nunc pro tunc as of January 18, 1890,” was granted. From these orders the defendant has appealed.
We think the court properly denied the motion to dismiss the action. The application was based upon section 581 of the Code of Civil Procedure, which provides that “ an action may be dismissed .... in the following cases: .... 6. By the court when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months.” This section is not mandatory (Rosenthal v. McMann, 63 Cal. 505); and if it were, would not authorize a dismissal of the action under lie circumstances shown in this case, because there was no “neglect” on the part of the plaintiff. When plaintiff paid to the clerk the costs of the action after verdict, and presented him -with a form of the judgment which she desired to have entered, she had a right to rely upon the assumption that the clerk would perform the duty required of him by the statute. Section 664 of the Code of Civil Procedure provides that “ when trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings.”
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