Durant v. Comegys

Idaho Supreme Court

Durant v. Comegys

26 P. 755, 3 Idaho 67, 35 Am. St. Rep. 267, 1891 Ida. LEXIS 2

CourtIdaho Supreme Court

DecidedMay 12, 1891

StatusPublished

Cited by12 cases

This text of 26 P. 755 (Durant v. Comegys) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durant v. Comegys, 26 P. 755, 3 Idaho 67, 35 Am. St. Rep. 267, 1891 Ida. LEXIS 2 (Idaho 1891).

Pincite

Opinion

MORGAN, J.

The first question to he considered is, Is this a judgment from which an appeal can be taken ? If there is no judgment no appeal can be taken, and this court has no jurisdiction. (Grey v. Cederholm, 2 Idaho, 34, 3 Pac. 12; Meysan v. Chabrie (Cal.), 7 Pac. 634; Stebbins v. Savage, 5 Mont. 253, 5 Pac. 278.) Section 4807 of the Revised Statutes of Idaho, is as follows: “An appeal may he taken to the supreme court from a district court; first, from a final judgment in an action or special proceeding commenced in the court in which the same is rendered within one year after the entry of judgment.” In McLaughlin v. Doherty, 54 Cal. 519, the court states as follows: “Section 939 of the Code of Civil Procedure provides that an appeal may be taken from the final judgment within one year after the entry of judgment.” It will be noticed that the wording is the same as our own statute. In Gray v. Palmer, 28 Cal. 416, this provision of the practice act was before the court for construction, and the court in its opinion defined with precision the distinction between the rendition and entry of a final judgment within the meaning of that act. The distinction which the court made was that a judgment is rendered when ordered by the court, and entered when actually entered in the judgment-book. (See, also, Trenouth v. Farrington, 54 Cal. 273.) In the case of McNevin v. McNevin, 11 Pac. C. L. J. 92, the journal entry was in the following language: “Ordered that plaintiff’s prayer for a decree of divorce be denied, and that defendant have judgment for costs.” The court held this to be an order for judgment only, and dismissed the appeal. The same was held in the case of Thomas v. Anderson, 55 Cal. 43. Both these eases were approved in Schroder v. Schmidt, 71 [70]*70Cal. 399, 12 Pac. 302; also in Tyrrell v. Baldwin, 72 Cal. 192, 13 Pac. 475; Kimple v. Conway, 69 Cal. 71, 10 Pac. 189. Section 4454 of our statute requires the clerk to keep a judgment-book, in -which judgments must be entered. Section 4456 requires him immediately after entering the judgment to attach together and file certain papers, which shall constitute the judgment-roll. It is from the judgment so entered in the judgment-book that an appeal must be taken, and not from the order of the court directing such judgment. The language used in this case, and recorded in the journal, was simply an order directing the entry of judgment of dismissal and for costs. (Black on Judgments, secs. 110, 115; Hayne on New Trial and Appeal, 183, note 6.) It is but just to the eminent counsel engaged in this cause to say that this conclusion was arrived at before the supplemental briefs were filed. Since they were filed the case cited by counsel for appellants has been examined, but has not changed the opinion of the court. In our opinion, an objection to the jurisdiction may be made at any time. If not made at all by counsel, and it appeared in the record, the court would be obliged to take notice of it. Appeal dismissed, without prejudice to another appeal; costs of appeal awarded to respondent.

Sullivan, C. J., and Huston, J., concur.

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MORGAN, J.

The first question to he considered is, Is this a judgment from which an appeal can be taken ? If there is no judgment no appeal can be taken, and this court has no jurisdiction. (Grey v. Cederholm, 2 Idaho, 34, 3 Pac. 12; Meysan v. Chabrie (Cal.), 7 Pac. 634; Stebbins v. Savage, 5 Mont. 253, 5 Pac. 278.) Section 4807 of the Revised Statutes of Idaho, is as follows: “An appeal may he taken to the supreme court from a district court; first, from a final judgment in an action or special proceeding commenced in the court in which the same is rendered within one year after the entry of judgment.” In McLaughlin v. Doherty, 54 Cal. 519, the court states as follows: “Section 939 of the Code of Civil Procedure provides that an appeal may be taken from the final judgment within one year after the entry of judgment.” It will be noticed that the wording is the same as our own statute. In Gray v. Palmer, 28 Cal. 416, this provision of the practice act was before the court for construction, and the court in its opinion defined with precision the distinction between the rendition and entry of a final judgment within the meaning of that act. The distinction which the court made was that a judgment is rendered when ordered by the court, and entered when actually entered in the judgment-book. (See, also, Trenouth v. Farrington, 54 Cal. 273.) In the case of McNevin v. McNevin, 11 Pac. C. L. J. 92, the journal entry was in the following language: “Ordered that plaintiff’s prayer for a decree of divorce be denied, and that defendant have judgment for costs.” The court held this to be an order for judgment only, and dismissed the appeal. The same was held in the case of Thomas v. Anderson, 55 Cal. 43. Both these eases were approved in Schroder v. Schmidt, 71 [70]*70Cal. 399, 12 Pac. 302; also in Tyrrell v. Baldwin, 72 Cal. 192, 13 Pac. 475; Kimple v. Conway, 69 Cal. 71, 10 Pac. 189. Section 4454 of our statute requires the clerk to keep a judgment-book, in -which judgments must be entered. Section 4456 requires him immediately after entering the judgment to attach together and file certain papers, which shall constitute the judgment-roll. It is from the judgment so entered in the judgment-book that an appeal must be taken, and not from the order of the court directing such judgment. The language used in this case, and recorded in the journal, was simply an order directing the entry of judgment of dismissal and for costs. (Black on Judgments, secs. 110, 115; Hayne on New Trial and Appeal, 183, note 6.) It is but just to the eminent counsel engaged in this cause to say that this conclusion was arrived at before the supplemental briefs were filed. Since they were filed the case cited by counsel for appellants has been examined, but has not changed the opinion of the court. In our opinion, an objection to the jurisdiction may be made at any time. If not made at all by counsel, and it appeared in the record, the court would be obliged to take notice of it. Appeal dismissed, without prejudice to another appeal; costs of appeal awarded to respondent.

Sullivan, C. J., and Huston, J., concur.

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Bluebook (online)

26 P. 755, 3 Idaho 67, 35 Am. St. Rep. 267, 1891 Ida. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durant-v-comegys-idaho-1891.

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