206 P. 1051 | Idaho | 1922
This is an appeal from an order of the district court dismissing the appeal of this cause from the justice’s court on the ground that it was taken prematurely. The cause was tried before a jury in the justice’s court on January 13, 1920. The verdict was filed, but not at that time entered upon the docket. Notice of appeal to the district court was filed and served January 20, 1920. The justice before whom the case was tried died January 30, 1920. On February 4, 1920, his successor in office entered the verdict and a formal judgment thereon, including costs, upon the docket.
C. S., sec. 7179, is in part as follows: “Any party dissatisfied with a judgment rendered in a civil action in a probate or justice’s court may appeal therefrom to the district court of the county at any time within 30 days after the rendition of the judgment.....”
C. S., secs. 7112, 7113 and 7114, are as follows:
“Sec. 7112: When a trial-by jury has been had, judgment must be entered by the court at once, in conformity with the verdict.”
“Sec. 7113: When a trial is by the court, judgment must be entered at the close of the trial.”
*293 “Sec. 7114: The judgment must be entered substantially in the form required by this code. “When the judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon the fact that the defendant is so subject must be stated in the judgment.”
Before an appeal will lie from a justice’s court to the district court, a final judgment in the cause must have been rendered. The distinction between the “rendition” and “entry” of a judgment is of course well understood. (Durant v. Comegys, 3 Ida. 67, 35 Am. St. 267, 26 Pac. 755; Gray v. Palmer, 28 Cal. 416.)
• California had statutes practically identical with those quoted above until the year 1907. In that year, section 893 of the Code of Civil Procedure (which corresponds with our section 7114) was amended by adding thereto the following sentence: “No judgment shall have effect for any purpose until so entered.”
In the case of Thomson v. Superior Court, 161 Cal. 329, 119 Pac. 98, the supreme court of California had under consideration the question of when a judgment in the justice’s court has been rendered so that an appeal therefrom will lie. The court said:
“Our attention has been called to the difference between section 939 of the Code of Civil Procedure and section 974 of the same code, the one providing that an appeal from a judgment in a court of record may not be taken until after the entry of judgment, while the time for an appeal from a judgment in a justice’s court begins to run upon its rendition.
“We think it is apparent from an examination of the section of our code relating to justices’ courts, that a judgment therein is not ‘rendered’ until it is ‘entered,’ or can legally be held to be ‘entered.’ There is no other way of ‘rendering’ a judgment in such a court. (See secs. 891, 892, and 893, Code Civ. Proc.) It is in this sense that the word should be held to be used in section 974 of the Code of Civil Procedure. Doubtless it is the justice’s duty to enter the judgment promptly. (Code Civ. Proc., sec.*294 891.) But until he does so, there is no ‘rendition’ of the judgment, in the sense used in section 974. If he refuse, he may be compelled to act.”
Counsel for appellant insists that this holding was rendered necessary by the amendment of 1907, above quoted, but we do not so understand the language of the court. (See, also, June v. Superior Court, 16 Cal. App. 126, 116 Pac. 293; Hargrove v. Turner, 108 Ga. 580, 34 S. E. 1.)
There are authorities to the effect that in a justice’s court the verdict of the jury constitutes the judgment. In the case of Gaines v. Betts, 2 Doug. (Mich.) 98, the supreme court of Michigan said: “The verdict is itself the judgment of the law in the case, and the justice is simply required to make the entry on his docket. If he neglects to do so, still the verdict must be considered the final determination of the case.”
See, also, Overall v. Pero, 7 Mich. 315; Lynch v. Kelly, 41 Cal. 232; State ex rel. Hanke v. Myers, 70 Minn. 179, 68 Am. St. 521, 72 N. W. 969; Stemmons v. Carey, 57 Mo. 222; Munday v. Clements, 58 Mo. 577; Giett v. McGannon Merc. Co., 74 Mo. App. 209; Davis v. Pinckney, 20 Tex. 341, and Felter v. Mulliner, 2 Johns. (N. Y.) 181. In all those cases, however, it seems that the verdict was entered upon the docket of the justice.
C. S., sec. 7117, provides: “The court must tax and include in the judgment.the costs allowed by law to the prevailing party.”
A judgment in a justice’s court cannot be proved by parol. No formality is required in a judgment in the justice’s court, but enough must appear in the record to indicate in whose favor the judgment is rendered, and against whom, together with the amount thereof, including costs. (C. S., secs. 7114 and 7117; Grey v. Cederholm, 2 Ida. 34, 3 Pac. 12.) If the judgment be not for a sum of money, it must show in substance that it is a final determination of the issues presented. (Swift v. Cornes, 20 Wis. 397.)
These matters can only be shown by the justice’s docket. In this case at the time the appeal was taken there was
The order is affirmed. Costs to respondent.
