Fuller v. Blanc

BEAN, C. J. The respondents move to dismiss this appeal for the reason that the notice of appeal was not served within the time limited by section 7-503, Oregon Code 1930. On Saturday, October 23, 1937, the jury returned a verdict in favor of plaintiff at 5:15 o’clock, p. m. The hour being late the verdict was received and the jury discharged. On Monday, October 25, 1937, the clerk of the court prepared an entry of judgment on the verdict and the same was signed by the judge and the clerk entered the judgment in the journal of the court as of October 23, 1937, the day upon which the verdict was received. On December 24,1937, defendant served and filed a notice of appeal describing the judgment in favor of plaintiffs and against the defendant, as having been rendered on October 23,1937. The affidavit of the clerk of the circuit court shows the return of the verdict and the preparation and entry of the judgment order on October 25, which was given and signed by the circuit judge. It therefore appears that the judgment in the case was actually rendered on October 25,1937. Afterwards, upon an application, the court corrected the date of the judgment entry maldng the same October 25, 1937, instead of October 23, 1937, as being an error on the part of the clerk. The respondents contend that the entry of the judgment was properly made on the 23d of October, 1937, and that the circuit court had no authority to correct the date so as to read October 25, 1937, and that in entering the judgment the clerk followed the provisions of section 2-1509, Oregon Code 1930, which provides in *53 part that if the judgment has been given in term time, it may be entered at any time during the term, of the day’s proceedings on which it should have been entered. It should be noticed that section 7-503, subd. (5), provides that upon appeal to the supreme court, notice of appeal shall be served and filed within 60 days from the entry of the judgment order or decree appealed from. (We italicize.) We fail to see how the clerk could enter the judgment on October 23,1937, before the judgment was rendered. The judgment having been actually rendered on October 25, 1937, we think the court was authorized to correct the date of the judgment entered on proper application. The 60 days did not commence to run until the judgment was actually entered. Section 2-1509, Oregon Code 1930, provides as follows : “When the clerk is unable or omits to enter judgment within the time prescribed in this chapter, if the judgment has been given in vacation, it may be entered at any time thereafter, of the date which it is actually entered; if it has been given in term time, it may be entered at any time during the term, of the day’s proceedings on which it should have been entered, or, on motion of the party entitled, at any subsequent term, of the day on which it is actually entered. ’ ’ And section 2-1506 provides: “If the trial be by jury, judgment shall be given by the court in conformity with the verdict and so entered by the clerk within the day on which the verdict is returned.” These provisions in regard to the entry of the judgment by the clerk are directory and a judgment entered after the day on which a verdict is rendered is a valid judgment and it has been held that the judgment *54 within the day evidently means within 24 hours; otherwise the verdict returned just before midnight would be ineffectual unless a judgment could be entered thereon at the last moment of that day, as held by this court: Casner v. Hoskins, 64 Or. 254, 281 (128 P. 841, 130 P. 55); Strickler v. Portland Ry. L. & P. Co., 79 Or. 526 (144 P. 1193, 155 P. 1195). In Skelton v. Newberg, 76 Or. 126 (148 P. 53), we read: “No penalty is attached or forfeiture prescribed for a failure to give or enter a judgment within the day the verdict is returned. * * * “We conclude, therefore, that section 201, L. O. L. (§ 2-1506. Oregon Code 1930), as amended, is not mandatory, and that the delay of 24 days in giving and entering the judgment after the verdict was returned was not so unreasonable as to deprive the court of power to determine the matter. ’ ’ The court had the right to correct an obvious error in its records at any time during the term, when called to its attention. In Grover v. Hawthorne, 62 Or. 65, 71 (116 P. 100, 121 P. 804), we said: “Every court of record has the inherent right and power to cause its acts and proceedings to be correctly set forth in its records. It is the duty of the clerk as an instrument of the court to make such a memorial; and, whenever it is properly brought to the knowledge of the court that this was not done at the time of the proceeding, the authority of the court to cause a record to be made in accordance with the facts is undoubted. ’ ’ The motion to dismiss also raised the question by respondents that the notice was insufficient for the reason that it gives the date of the judgment as the 23d of October. Section 7-503 provides: “Such notice shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party or his attorney that an appeal is *55 taken to the Supreme or circuit court * * * from the judgment, order or decree, or some specified part thereof.” There is no suggestion that any other judgment was rendered in favor of the plaintiffs and against the defendant, except the one mentioned, and we think that the notice was sufficient to inform the plaintiffs, upon an inspection of the notice of appeal, giving the same a fair construction or reasonable intendment and without resort to evidence aliunde the transcript, that the appeal is taken from the judgment in the case, and it is sufficient to confer jurisdiction of the same: Raiha v. Coos Bay C. & F. Co., 77 Or. 275 (143 P. 892); see also McFarland v. Hueners, 96 Or. 579 (190 P. 584). As the judgment was actually entered in the circuit court on Monday, October 25,1937, although the notice of appeal gave the date as of the 23d, we think the notice of appeal was sufficient in that respect. It was filed within 60 days of the correct date of the judgment, entry: § 7-503. Therefore the motion to dismiss must be denied. It is so ordered.