Menzies v. Watson

Temple, C. This is an appeal from an order made after judgment. It is a proceeding after judgment to correct an alleged mistake as to the date of the entry of the judgment. The record does not show how the alleged error affects any rights of the moving party, but it is stated in the briefs that the defendant, having taken an appeal from the judgment, was confronted in this court by a motion to dismiss the appeal on the ground that it was taken more than one year after the judgment was entered. The judgment purports to have been entered December 6, 1892. The appeal was taken December 8, 1893.

The moving party does not pretend to know when the judgment was actually entered, but claims that it was not before December 10, 1892.

[111]The motion was based principally upon the affidavit of H. A. Massey, who was a clerk for Mastick, Belcher & Mastick, who were the attorneys for the defendants.

His affidavit is broad enough, perhaps, to entitle the defendant to the relief demanded, but the affiant was also called as a witness at the hearing of the motion, and his cross-examination shows that he did not know all the matters stated in his, affidavit to be true.

He was sent to the clerk’s office “ to obtain copies of the findings in said cases and of the judgments therein, if he should find that such judgments had been entered.” He went there, as it otherwise appeared, on the 8th of December, 1892. He found the findings, but could not find the judgment. He inquired, and was sent to the room where judgments are copied into the judgment-book. He asked several clerks there about it, but they knew nothing of it. He was finally directed to a certain copyist who was copying judgments into the judgment-book, and together they looked through the book and found that the judgment had not been copied there. He did not look through more than one judgment-book to see whether the judgment had then been recorded. He did not remember whether there was a judgment-roll, or whether the judgment was docketed. He did not remember whether the register showed that the judgment had been entered or the judgment-roll filed.

The judgment-roll was apparently filed on the 5th— or at least that is what the register shows. On that day the judgment appears to have been docketed.

All this is in direct violation of plain provisions of the statute. Section 663 provides that judgments shall be entered in the judgment-book. There is no other “ entry” of judgments mentioned in the code. After this entry, and not before, the judgment-roll can be made up and filed. (Code Civ. Proc., sec. 670.) After this, and not before, the judgment can be docketed and a judgment lien created. (Code Civ. Proc., sec. 671.)