A judgment of foreclosure was entered on February 25,1916, and an appeal was taken on April 29, 1916. That appeal has beеn dismissed on motion of appellant. The judgment was on two promissory notes each for $4,593', and by it a sale of the premises covered by the mortgage was ordered, but there was no express provision for the docketing of any deficiency. The рroperty was sold for five thoúsand dollars; a return showing this fact was filed; and on April 22, 1916, the clerk docketed a deficiency judgment against appellant in the sum of $6,617.30. On April 24, 1916, Richvale Land Company appealed from this deficiency judgment and respondеnt has moved to dismiss the appeal upon the ground that such a judgment is not appealable.
Appellant insists that there is nо doubt that the deficiency was entered without authority of law; that while the original judgment as given by the court directed the commissioner to conduct the sale of the premises and to apply the proceeds to the payment of the notes, interest, etc., there was no adjudication of a personal liability against appellant which would authorize the clerk undеr the terms of section 726 of the Code of Civil Procedure to docket a judgment for any balance remaining due; and that in the absence of a judgment of personal liability, such a docketed entry is void. (Citing
Scam-man
v.
Bonslett,
At the oral argument it was suggested that relief from the apрarent lien created by the void entry should have been sought by appropriate motion in the lower court to set asidе and cancel the clerk’s entry made without authority, and that if such a motion were denied, an appeal might have been prosecuted from the order of the court, if one were made, refusing to expunge the clerk’s unauthorized entry. In other words, the objection to entertaining such an appeal is that by so doing this court would recognize the mere clerical function of a ministerial officer as a judicial act.
The answer to this argument is that the docketed entry of the clerk amounts tо a void judgment, and that appellant is entitled to relief from such judgment on appeal, because this
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court has repeatedly recognized the right to appeal from a void judgment. In this behalf appellant cites
In re Bulloch,
The first of these was an appeal from an order directing an administrator to file his account and settling said account. To the contention that thе order was void, and therefore not appealable, the court replied that void orders may be appeаl-able, saying: “Whether an order is appealable is to be determined by what it purports to determine, not by what may be its actual operative effect.”
The second was a case in which appellant made the contention that the judgmеnt was void because it was delivered by one whose term as a judge of the superior court had expired. Respondent сonceded that an appeal will lie from a void judgment, but insisted that an appeal may only be taken from a court tо a court, and as appellant denied the existence of the purported court, he also questioned the right to аppeal from its so-called judgment. This court held, however, that although an appeal might not be the only remedy, it would lie.
In Page v. Superior Court, supra, the matter decided was that an entry of dismissal in the clerk’s “register of actions” was not a judgment of dismissal in contemplation of law, and that subsequent orders of the court were made with full authority. In the course of the discussion, after pointing out the finality of a judgmеnt entered in the judgment-book by the clerk where power to enter such judgment is given him, the court said: “On the other hand, if the case bе one in which the clerk has no power to make the entries because of a counterclaim or cross-complaint, the clerk’s judgment may be set aside by the court, or may be appealed from. A void judgment is appealable, and it mаy be set aside as cumbering the records.”
We think that these authorities, and particularly the one from which we quote the above paragraph, sustain appellant’s position. The moving party in this proceeding has filed no brief and our own industry has discovered no authorities conflicting with those cited by appellant. Under section 726 of the Code of Civil Procedure, it is providеd that, in proper cases, “judgment must then be docketed by the clerk,” after the filing of the commissioner’s report “for such balаnce *155 against the defendant or defendants personally liable for the debt, and it becomes a lien on the real estаte of such judgment debtor. ’ ’ While the judgment as docketed by the clerk derives its judicial force, if any, from the original decision of thе court, it is nevertheless a separate and distinct judgment from that of foreclosure—is so made by the statute. In a sense, the judgment of foreclosure is interlocutory and the deficiency judgment is final, the clerk’s function being to record the court’s determination when made definite by the sale of the mortgaged property. If a deficiency judgment is entered without authority, it is nevertheless a judgment in form. In this case the clerk docketed such a judgment. If, under the authorities cited by appellant, his act was not supported by the decision of the court, nevertheless the void judgment would be appealable, just as an appeal might be taken from a judgment of dismissal entered by a clerk without power under the statute because of the existence of a сounterclaim or cross-complaint. If his act was in all respects proper and. done under full authority of law, the judgment is оne from which an appeal will lie. The question regarding its validity will come properly before us when we shall be called upon to decide the appeal on the merits. This court may not in this proceeding make final disposition of the case as appellant wishes.
The motion is denied.
Henshaw, J., Shaw, J., Sloss, J., and Angellotti, C. J., concurred.