West States M. L. Co. v. Hurst , 41 Idaho 80 ( 1925 )

In this action the complaint was filed May 25, 1918. A copy of the findings of fact, conclusions of law and judgment was served on counsel for appellant on March 3, 1920, and the judgment was filed on March 10, 1920. Motion for new trial was denied on April 11, 1921. Notice of appeal from the judgment was filed July 28, 1923, which was more than three years after the judgment was deposited with the clerk of the court. The clerk has certified (outside his transcript) that the "judgment was actually . . . . entered in Book 1 of Judgments. . . . on the 1st day of May, 1923, . . . . " We are met with a motion to dismiss the appeal. One of the grounds is that this court is without jurisdiction to entertain the appeal for the reason that notice of appeal was not filed within ninety days of the "filing and entry of the judgment."

It is the law that a notice of appeal must be filed within ninety days after the entry of a final judgment (C. S., sec. 7152); and that a judgment is deemed entered when it is deposited in the office of the clerk of the court for entry. (C. S., sec. 6899.) This judgment, according to the transcript, was deposited with the clerk and filed on March 10, 1920; and, under C. S., sec. 6899, it must be deemed to have been entered on that day. In fact, the certificate of the clerk is incompetent and inadmissible to impeach the regularity of his official act that the judgment was filed in his office on March 10, 1920. (Athey v. Oregon Short Line R. R. Co., 30 Idaho 318,165 P. 1116.) But conceding that the record shows that while the judgment was deposited with the clerk and filed on March 10, 1920, the labor of entering the judgment at length was not actually performed until May 1, 1923, under the statute the judgment will be deemed to have been entered on March 1, 1920. In Berding v. Varian,34 Idaho 587, 202 P. 567, it was moved to dismiss the appeal on the ground that it was "taken from a judgment made and filed. . . . and not from a judgment made and entered. . . ." This court said: "The first ground upon which a dismissal is asked. . . . is without merit for the reason that under our statute when a judgment is filed it is deemed in law to be entered."

Appellant contends that the 1917 amendment of the statute, now C. S., sec. 6899, had the effect of enlarging the time for taking appeals. We cannot give the statute as amended such a construction. Under it, the time for taking an appeal would depend more on the diligence of the clerk in entering a judgment than the time provided by law. The legislature, under the authority vested in it in the constitution, has fixed ninety days from and after the entry of a final judgment within which to file notice of appeal. When a judgment is filed it is deemed by statute to be entered. The notice of appeal was not filed in time and the attempted appeal does not vest this court with jurisdiction to hear and determine the question sought to be presented.

Motion granted. Costs to respondent.

William A. Lee, C. J., Budge, Givens and Taylor, JJ., concur.