Robinson v. Salt Lake City

109 P. 817, 37 Utah 520, 1910 Utah LEXIS 75

Opinion

FRICK, J.

Appellant brought this action to recover damages for personal injuries which it is alleged he sustained by being thrown from his wagon while driving in one of the streets within the corporate limits of respondent city. It is alleged that said street was in a defective and dangerous condition for travel by reason of an excavation which respondent had caused to be made and had negligently suffered to remain therein. Respondent denied all the acts of negligence, and pleaded contributory negligence. At the trial, after appellant had produced his evidence and rested, counsel for respondent moved for a nonsuit. The court sustained the motion and dismissed the action; hence this appeal.

Counsel for respondent have interposed a motion to dismiss the appeal upon the ground “that no judgment has ever been entered in this action.” At tbe bearing tbe argument for dismissal was based upon two grounds: (1) Tbat no judgment bad been entered; and (2) tbat no judgment bad been rendered in tbe action by tbe court.

We shall consider tbe last ground first. From tbe judgment roll as certified up by tbe clerk of tbe district court tbe following is made to appear: After giving tbe title of tbe case, and after reciting tbat tbe cause came on regularly for trial, tbat a jury was duly impaneled, tbat witnesses were sworn and examined on bebalf of plaintiff, and tbat plaintiff bad rested, tbe record continues: “Whereupon H. J. Din-inny (respondent’s counsel) now moves tbe court for judgment of nonsuit and dismissal herein, .... and, tbe court having considered and now being fully advised in tbe premises, it is ordered tbat tbe motion be, and tbe same is hereby, granted, and tbe within case dismissed.” It is contended tbat tbe foregoing language does not constitute a judgment, and, if it is to be given any effect at all, it can be considered only as an order for a judgment. Tbe statute does not require a judgment to be in any particular form. Ordinarily a judgment is sufficient if by tbe use of 1,2 proper language it is stated what tbe prevailing party shall receive and what tbe losing party is required to do, pay, or discharge, and in that way adjudicates and disposes of tbe matters in controversy. On a motion for a nonsuit noth-ign is before tbe court except tbe question whether in view of tbe evidence before tbe court tbe case is one which should be determined as a question of law. If a motion is granted, tbe only judgment tbat is permissible is one dismissing tbe action; tbat is, one which arrests any further proceeding in tbat action except on appeal. Such a judgment is not a bar to a future action upon the same cause of 3 action, and cannot be pleaded as such. (Guthiel v. Gilmer, 27 Utah, 496, 76 Pac. 628.) For these reasons, tbe courts have held very informal judgments of dismissal sufficient to sustain an appeal, as is well illustrated by tbe following cases: In tbe case of DeGraf v. Seattle, etc., Co., 10 Wash. 468, 38 Pac. 1006, a motion for a nonsuit was inter posed as in this case. As appears from the judgment roll in that case'tbe judgment was in the following form: “Thereupon defendant’s attorney moved the court for an order of nonsuit, which motion is granted upon due consideration thereof, and the cause is ordered dismissed and the jury herein . duly discharged.” The foregoing was held to be sufficient as a final judgment from which an appeal would lie. In Koons v. Williamson, 90 Ind. 599, the Supreme Court of Indiana held that the following constituted a final judgment from which an appeal could be prosecuted, to wit: “To which ruling of the court the plaintiff excepts, and the cause of action is dismissed at the cost of the plaintiff.” No doubt it is the last clause of the quotation which constituted the judgment. In Heegaard v. Dakota, etc., Co., 3 S. D. 569, 54 N. W. 656, the entry was as follows: “By the Court: The judgment is that the action be and is hereby dismissed.” This, it was held, was sufficient in form to constitute an appealable judgment. It is not possible to draw a distinction between the cases just quoted.from and the case at bar. But, entirely apart from authority, why is 4, 5 the language we have quoted in this case not ample to constitute a judgment which .disposes of the action ? As presented by the record, the language purports to be the action or judgment of the court dismissing the action and nothing else. This judgment arrested all further proceedings, and hence was a final judgment in the action, and, if so, was appealable.

The next contention is that the appeal should be dismissed herein because the alleged judgment was not entered in the judgment book, as required by section 3195, Comp. Laws 1907. “ This section, in effect, provides that the clerk must enter the judgments in a book “called the judgment boob.” By section 3197 it is also in substance provided that “immediately after entering the judgment the clerk must attach together and file the following papers which constitutes the judgment roll.” These papers include “a copy of the judgment.” In this case the judgment roll was made up as required by said section. Section 3301 provides: “An appeal may be taken within six months from the entry of the judgment or order appealed from.” From 6, 7 the provisions contained in the foregoing sections there remains little, if any, room to doubt that before the judgment roll is made up and before an appeal can legally be taken from a judgment, it must be entered in the judgment book, and that the time within which an appeal may be taken dates from such entry.

The question remains, however: How must the fact that a judgment has been duly entered be made to appear in the record on appeal? As we have pointed out, section 3195, supra, provides that the clerk must keep a judgment book in which he must enter the judgments, and that he must do this before he makes up the judgment roll. The duty to do these things is therefore imposed upon a public officer. The presumption therefore arises that the officer has regularly discharged the duties of his office which are imposed by law. (Lawson, Law of Presumptive Evidence [2 Ed.], p. 67.) The presumption therefore is that the clerk entered the judgment in the proper book before the judgment roll was made up. By an inspection of the judgment roll as made up by the clerk in this case nothing is made to appear' therefrom that the derk has not performed his duty. There is an affidavit presented, however, in which it is stated 8 that the judgment was not entered before the appeal was taken. This affidavit is, however, not a part of but is dehors the record. We have recently in effect held that, for the purpose of determining whether this court has jurisdiction or not, the record as certified up by the clerk until amended in due course is conclusive. (Warnock v. Peterson, etc., Co., 35 Utah, 542, 101 Pac. 699.) If it is contended that the record does not speak the truth, it may not, for that reason be collaterally assailed by affidavit, but must be amended so as to conform to the actual facts, and until so amended this court is bound by the record as certified to by the clerk. By an inspection of the record, therefore, as certified up, we must indulge the presumption that the clerk discharged the duty imposed upon him by law, and that he entered or caused the judgment to be entered in tbe judgment book before be made up tbe judgment roll, and, until tbis presumption is overcome by tbe record itself, tbe presumption must prevail. If tbis presumption is attacked and tbe record is assailed as not being correct, it must be corrected by way of amendment as above indicated. When a proposed amendment is found to be correct in point of fact and is allowed^ then tbe record on its face may disclose tbe defect of jurisdiction, and when sucb is tbe case, and not otherwise, can tbe jurisdiction of tbis court be successfully assailed. For tbe foregoing reasons tbe motion to dismiss tbe appeal must be denied.

We will now proceed to a consideration of tbe case on tbe merits. From tbe evidence preserved in tbe bill of exceptions (excluding tbe formal proof) tbe jury were authorized to find, in substance, that tbe street in question was within tbe corporate limits of tbe respondent city; that it was open and generally used for travel; that early in February, 1909, one Sam Bates, who was then employed in tbe water department of respondent, dug an excavation in said street for tbe purpose of exposing tbe water mains or pipes laid therein; that tbe excavation was about four feet long, about two feet wide, and from three and one-balf to four feet deep; that it was anywhere from four .to fifteen feet from tbe ditch or gutter on tbe outside of tbe sidewalk and in tbe traveled portion of tbe street; that tbe earth was thrown back into tbe excavation in a loose manner; and that, by reason of tbe rains and the flat and wet condition of the soil, water bad gathered and was standing in pools in different parts of tbe street, a portion of which covered tbe excavation in question; that tbe excavation bad remained in tbe street in sucb condition for about four days before tbe happening of tbe accident; that while tbe street was in tbe condition aforesaid, and while appellant was driving bis team bitched to bis garbage wagon in tbe traveled portion of tbe street, one of bis horses suddenly fell into tbe excavation, and immediately thereafter tbe front wheel of appellant’s wagon also went into tbe “bole,” as appellant called it; that tbis caused tbe wágou to lurch to one side, by reason of which appellant was thrown from his seat on the wagon where he was riding into the street, and at least one of the wheels of the wagon passed over his leg, breaking the bones, and permanently injuring him and causing him much pain and suffering. We remark that the evidence on some of the points was not clear, and on others it was inferential rather than direct. Appellant after adducing evidence which tended to establish the foregoing facts rested, whereupon counsel for the city moved the court to grant a nonsuit upon the grounds: (1) That “the plaintiff has failed to make a cause of action within the allegations of his complaint;” and (2). “that he has failed to prove that the city made any excavation, or left any excavation in the street, or that anybody made an excavation in the street and it had been left for any length of time to charge the city with notice of the same.” The court granted the motion and dismissed the action. Appellant now urges that the court erred in not submitting the case to the jury upon the evidence.

We are of the opinion that appellant’s contention is correct. While there is nothing to indicate on which 9 one of the grounds the court based its ruling, yet we think that, under the evidence, the case is one which should have been submitted to the jury on both grounds. We think the evidence is sufficient to authorize a finding that there was an excavation in one of the main thoroughfares of the city which caused it to be defective if not dangerous, and that appellant was injured while he was using the street for the purposes for which it is intended. True, the evidence may not be overwhelming, nor even strong on some of the points, and it may even tend' to show contributory negligence ; but whether the evidence is strong or weak, or whether there is some evidence of contributory negligence or not, is not the test The test is whether or not there is some substantial evidence in support of every essential fact which a plaintiff is required to prove in order to entitle him to recover. If the evidence and the inferences are of 10 the character which would authorize reasonable men to arrive at different conclusions with respect to whether all the essential facts were or were not proven, the qustion is one of fact and not of law. This is so although the evidence on some points may be very unsatisfactory or doubtful. (Brown v. Salt Lake City, 33 Utah, 242, 93 Pac. 570, 14 L. R. A. [N. S.] 619, 126 Am. St. Rep. 828.) This has so often been said by the courts that the rule Has become elementary. The only difficulty arises in its application.

We think the court also erred upon the second ground. Whether the city caused the excavation to be made, or whether some stranger made it was a question of fact. Again, if the jury had found thae some stranger made the excavation, or caused it to be made, the question of whether the city had or had not notice of its existence and character was also a question of fact to be submitted to the jury under proper instructions. (Jones v. Ogden City, 32 Utah, 221, 89 Pac. 1006.)

In view of what has been said, the remaining assignment is immaterial.

For the foregoing reasons, the judgment is reversed, and the cause is remanded to the district court, with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed, appellant to recover costs.

STRAUP, C. J., and McCARTY, J., concur.