Rodgers v. HigginsRodgers v. Higgins
- Reporters:
- ,
- Before:
- Opala
Lead Opinion
The single issue for our decision is whether the general unreserved jury verdict in this common-law action became the “filed judgment” in the § 990A [12 O.S.1991] sense by operation of
THE ANATOMY OF LITIGATION
James G. Rodgers [Rodgers] brought a common-law claim against two physicians and their employers [doctors or defendants]2 for bodily injury caused by a tainted blood transfusion, from which he contracted “Type C” hepatitis,3 a fatal disease. Although in support of his single claim4 Rodgers urged several alternative theories of recovery, the trial court confined the case on submission to but one of them — that of negligence. Rodgers’ wife sued for loss of consortium. Her claim was derivative of that pressed by the husband.5 Both claims went to the same jury concurrently. Its verdict in favor of all the defendants6 — accepted below without judicial reservation7 — was received by the
I
THE GENERAL UNRESERVED JURY VERDICT, RATHER THAN THE TRIAL COURT’S PRESUBMISSION RULING ON THE APPLICABLE THEORY OF RECOVERY, DISPOSED OF THE RODGERS’ CLAIMS
The doctors seek this appeal’s dismissal for untimeliness. They urge us to apply the teachings of Jaco Production Company v. Luca,10 which holds that a judicially unreserved general verdict — entered by the clerk in a common-law action — becomes transmuted into a filed judgment eo instante by force of
The Rodgers argue the verdict did not resolve all the issues because the district court had “sustained defendants’ demurrer to the evidence ” on some of the “claims.” They would have us treat each of their multiple alternative theories of recovery as a distinct cause of action (or as a separable claim ).12 According to the Rodgers, no judgment was entered until the trial court memorialized both the jury’s verdict and its presubmission ruling in the single journal entry of March 26, 1992.13
Oklahoma jurisprudence utilizes the transactional approach for its definition of a “cause of action.”14 Although different theo-
At pretrial Rodgers identified what he called his “claims” or “causes of action” as: (1) fraud and misrepresentation, (2) breach of warranty and (3) execution of a blood transfusion without his informed consent.16 In law all of his asserted grounds constitute nothing more than three distinct and alternative theories of recovery.17 Defendants “demurred” to the evidence at the close of the case; they contended the proof was insufficient to support any claim against them, especially one founded on breach of warranty or on fraud and misrepresentation. The trial court ruled the facts warranted the claim’s submission on a want-of-due-care theory of the plaintiffs’ allegations that (a) the doctors did not completely and accurately inform Rodgers about the risks from the ■blood transfusion, (b) as a result of their omission he withdrew his objection to the procedure’s execution and (c) later suffered bodily injury. In short, the critical nisi prius mid-trial ruling withheld from submission two of the three theories tendered by the plaintiffs: (1) breach of warranty and (2) fraud and misrepresentation.18
A plaintiff who states a claim and proves its facts is entitled to any relief affordable by law;19 the pleader need not correctly identify any applicable theory of recovery.20 The trial court must charge the jury on all the legal issues the evidence tenders?21 In this case, the trial court ruled the evidence called for instructions on the theory of negligence and on the wife’s loss of consortium. Plaintiffs’-pressed submission of the claim on other theories was rejected as unwarranted by their proof.
When the trial of this case began (1) Rodgers had but one claim ex delicto for damages against four defendants, all answerable jointly and severally and (2) his wife had a single claim against the same four parties for her loss of consortium. Both of the Rodgers’ claims went to the jury against all of the four defendants in the case.24 Its verdict favors all the defendants. In short, the only demands the Rodgers ever had — one claim by each of them — were finally disposed of by the single jury verdict.
The district court’s mid-trial ruling does not represent an order appealable before judgment; nor does it leave post-verdict issues to be resolved. Had this case been timely appealed, any error in withholding from the jury’s consideration the rejected plaintiffs’ theories of fraud and breach of warranty, if properly preserved, clearly would have been reviewable on appeal from the judgment entered by force of
II
A
APPEAL TIME IN A COMMON-LAW ACTION IS TRIGGERED BY THE TRIAL COURT’S UNRESERVED ACCEPTANCE 26 OF A GENERAL JURY VERDICT AND THE CLERK’S ENTRY OF JUDGMENT INTO THE RECORD PROPER, WHICH TASK IS NECESSARILY PRECEDED BY FILING
“A judgment is the final determination of the rights of the parties in an action.”27
“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.” [Emphasis provided.]
Recent case law28 unequivocally teaches that under the provisions of 12 O.S. 1991
“A. An appeal to the Supreme Court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty (30) days from the date the final order or judgment is filed_” [Emphasis provided.]
The dissenters must concede not only that the judgment on a general unreserved jury verdict is rendered by operation of law, but also that under
B
WHEN THE LEGISLATURE REENACTED § 696 as
When the legislature restores verbatim previously enacted statutes, it is pre
The adoption of an amendatory act indicates legislative intent to change the law then in force.45 The legislature could easily have retained the § 1001 requirements that every judgment be contained in a separate document46 and that a judge-signed memori-alization be filed after a general jury verdict,47 if this procedure was indeed meant to be essential for triggering appeal time. If a journal entry was to be a sine qua non, the legislature would not have repealed those requirements nor reenacted § 696’s command for the clerk’s entry of judgment.48 Jaco, decided after § 696’s restoration as
Walker v. St. Louis-San Francisco By. Co.49 does not hold, as one dissent seems to counsel, that judicial action is required to effect judgment after a general unreserved jury verdict has been accepted. Rather, Walker teaches that a judge has authority to add prejudgment interest to a jury verdict where applicable.50 Walker is not inconsistent with Jaco’s teaching that appeal time in a common-law action runs from the clerk’s entry of judgment upon the general unreserved verdict.
The legislature must be charged with knowledge that matters to be “entered by the clerk” are to be incorporated into the “record proper” in the § 82.1 sense51 and that filing must precede entry.52 Before 1969, when notice of appeal was a prerequisite for appellate review,53 the court clerk had a mandatory duty to “enter notice of appeal” and there was no requirement that notice of intention to appeal be contained in any journal entry,54 The clerk’s “duty of entry” was held accomplished by incorporating the notice into the record proper55 — i.e.,
Although “filing” and “entry” are not synonymous, the two concepts are closely interwoven.59 The clerk may “enter” only that which is already “on file.”60 Filing of the judgment simply refers to its delivery to the clerk for entry and preservation.61 Every document’s entry is preceded by its filing— whether the entry be made (1) on a docket,62 (2) on the court’s journal,63 or (3) into the
In sum,
C
THE MEANING JACO PLACES ON
The relevant portions of
If we were to require a judge-signed journal entry for transformation of a general unreserved verdict into a “filed judgment,” effect could not be given to the clear commands in both
THERE CAN BE ONLY ONE JUDGMENT UPON A SINGLE CAUSE OF ACTION;76 TO AVOID AN ABSURD RESULT, THE JUDGMENT THE CLERK MUST ENTER WITHOUT JUDICIAL IMPRIMATUR UNDER THE COMMAND OF THE RESTORED
The dissents’ fears that Jaco’s teachings will result in wholesale dismissal of appeals is unfounded. Jaco’s authority applies only in a narrow subclass of cases, where the litigant defeated by a general unreserved jury verdict appeals directly from the judgment without first bringing a timely new trial motion.80
Absurdity would doubtless flow from the dissents’ suggestion that only a judge-signed memorialization of the proceedings can trigger appeal time in this common-law action. Although there might be a tempting allure in the illusion of uniformity the dissents hope to bring about, we would be robbed of the present law’s conceptual symmetry that makes appeal time’s commencement coincide with the time a judgment becomes executable and also with the temporal point at which postjudgment interest begins to run. A general unreserved verdict that is transmuted into judgment by the command of
The symmetry we preserve today, which eoncededly falls short of perfection, is essential — not simply for its own sake — but also because the legislature doubtless intended that a general unreserved verdict becomes efficacious qua judgment for all purposes at the same time, whether it be for computing postjudgment interest,83 for issuing execution,84 for bringing an appeal, or for suspending a judgment’s effectiveness pending its appellate review. After all, appeals are but a continuation of the same case after judgment.85
E
THIS COURT MAY NOT SUBSTITUTE ITS JUDGMENT FOR THE WILL OF THE LEGISLATURE THAT IS CLEARLY EXPRESSED IN A STATUTE86
The title of an act is an additional guide to ascertaining legislative intent.87 The words “restoring prior law ” appear in the title of the act we construe today. Had the legislature intended that the clerk-entered general unreserved verdict be anything other than a judgment for all purposes, it would not have fully restored the provisions of § 696 nor repealed those in § 1001.
The dissents propose to run a rescue mission for dilatory lawyers. They hope to bring about the well-nigh unattainable goal of dismissal-proof appeals,88 but nonetheless fall short of achieving complete uniformity. Under the provisions of § 993A, which prescribe appeal time for interlocutory decisions, the time would still run from the pronouncement rather than from the filed entry’s date.89 Our adoption of the dissents’ approach would hence bring about uniformity for only some appeals, leaving to sheer conjecture the point in time when interest would begin to accrue, execution may issue, vacation quests be brought, or dormancy occur.90 The dissents hope to save this appeal from dismissal but cannot accomplish their goal without judicial disregard of plain legislative intent.
Once transmuted into judgment by force of
F
IN THE ABSENCE OF ANY COMPELLING REASON TO OVERRULE JACO, WE MUST FOLLOW ITS TEACHINGS AND APPLY THEM TODAY TO THIS APPEAL
Simply stated, stare decisis means to abide by decided cases.93 This time-honored rule “serves to take the capricious element out of law”94 and give it stability. Jaco has settled the outcome of today’s quest for dismissal; its teachings must govern here. Unless precedents are “palpably bad,” judicial surgery in upsetting them must be avoided.95 The dissents suggest no cogent reason to discard Jaco;96 they merely press for adoption of an alternative analysis of the applicable statutes. Their counsel, if accepted, would reinstate a procedural design that the legislature has already tried and expressly eliminated from the body of our statutory law.
When the justices of the United States Supreme Court are called upon to reassess their commitment to a prior holding as binding precedent under the doctrine of stare decisis, they must appraise (1) whether the rule has proved to be intolerable by defying practical workability, (2) whether the rule is subject to the sort of reliance that would add special hardship to the consequences of overruling and inequity to the cost of repudiation, (3) whether related principles of law have developed so far that the old rule remains no more than a remnant of abandoned doctrine and (4) whether facts have so changed or come to be viewed so differently that the old rule has been robbed of significant application or justification.97
We must be mindful of these factors as we revisit Jaco today. Jaco’s authority does not suffer from unworkabilily. Jaco’s teachings have been applied at least ten times since it became effective in February 1992; only one other dismissal precipitated by Jaco has come to our attention.98 Jaco’s approach is more practical by far than that counseled by the dissents. Under the latter, once the triers have spoken, entry of judgment could lag while the journal entry is being crafted. A time-honored rule of practice casts on the victorious party the responsibility of preparing a journal entry. The appealing party— nearly always the defeated litigant — has no firm control over the process. Jaco’s more workable solution eliminates judicial and party control over the judgment’s entry;99 pure
The consequences of overruling Jaco could indeed cause (a) hardship to present and future litigants who might encounter delay in obtaining a judge-signed journal entry, (b) inequities to those whose eases have been decided under Jaco, (e) disservice to lawyers, courts, and litigants alike by making them subject to yet another change in procedure and (d) subversion of the court’s legitimacy and erosion of public confidence in the court’s decisions. No recent development has robbed Jaco of its soundness; its controlling rule has been expressly reaffirmed at least ten times since February 1992.100 In sum, the arguments advanced by the dissents for Jaco’s demise offer no compelling reason to depart from settled law in favor of judicial abrogation of a freshly reenacted legislative mandate.
Ill
ORDERLY PROCESS MANDATES THAT WE APPLY JACO TO TODAY’S APPEAL
This court’s reviewing cognizance is invocable only “in the manner provided by law.” Art. 7, § 4, Okl. Const.101 We are powerless to entertain a plea for corrective relief lodged after the expiration of maximum statutory time. Failure to bring a timely appeal constitutes a jurisdictional defect.102 By operation of
Judgment in this case was filed on March 6,1992. This was accomplished in the following sequential stages: (1) after the jury returned from deliberation, the verdicts were read aloud; (2) the court examined the verdict forms and showed them to the lawyer; (3) the judge announced he would “accept the verdict forms as rendered” and enter “these verdicts as a judgment in the case;” (4) the verdicts were filed to await their entry on the judgment roll and on the court’s judgment docket. By operation of
SUMMARY
Rodgers’ claim for bodily injury and his wife’s derivative claim for loss of consortium arose from Rodgers’ single pathogenic blood transfusion. Each plaintiff had but a single claim.113 Both were decided by the general unreserved verdict for all four defendants. Any preserved error in the proceedings which culminated in the claims’ submission would have been reviewable in a timely appeal from the judgment entered by force of
If allowed to carry the day, the dissents would (a) defer the verdict’s effectiveness, (b) make its legal force dependent upon judicial intervention and (c) substitute this court’s will for that of the legislature by lawlessly abandoning fidelity to the legislative history and to the text of § 696 that stands restored verbatim as
The only judgment in this case was that “filed” and “entered” upon the judgment roll on March 6, 1992 in obedience to the command of
APPEAL DISMISSED.
THE STATUTORY SYMMETRY OF AN EXECUTABLE JUDGMENT‘S ENTRY FOR THREE DIFFERENT CLASSES OF DECIDING MECHANISM UNDER
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CATEGORY I: Under the terms of
CATEGORY II: The terms of
CATEGORY III: As in Category I, no judgment exists until it is effected by a filed journal entry.
Notes
. See Part II for the text explaining that the clerk’s entry of judgment in a common-law action on a general unreserved jury verdict transmutes the verdict by operation of law into the “filed judgment” in the
“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.” [Emphasis provided.]
. The Rodgers also sued Saint Francis Hospital, which was dismissed from the case before trial and is not a party to this appeal.
. “Type C” hepatitis is also called “non-A/non-B hepatitis.”
. The February 26, 1992 pretrial order lists plaintiffs grounds for recovery as:
“a. Warranty
b. Fraud and Misrepresentation
c. Failure to obtain informed consent
d. Corporate liability.”
. “Loss of consortium” means loss of society, affection, assistance and conjugal fellowship. Black’s Law Dictionary 280 (5th ed. 1979).
. The trial court instructed the jury that a verdict against Dr. Higgins or against Dr. Hood would be a decision against their respective employers. Cardiology of Tulsa, Inc. or Gastroenterology Specialists, Inc.
. “Unreserved acceptance” follows the trial court’s failure to reserve judgment on a general jury verdict. It is the first step in the statutory process by which a jury verdict is transmuted into a judgment by force of
. For the terms of
. The March 26, 1992 entry provides in pertinent part:
“. . . On March 6th, Plaintiffs completed their evidence and rested and the Defendants interposed demurrers on the warranty claim which was sustained; on the fraud and misrepresentation claim which was sustained; on the consortium claim which was overruled; and the informed consent claim which was overruled. The Defendants proceeded to put on evidence and rested on March 6th. There being no rebuttal, the Court instructed the jury and closing arguments were made by both sides. After due deliberation, the jury returned into open court with their ten (10) person verdict signed by ten (10) jurors. The Court examined the verdict forms as well as the attorneys [sic] and there being no request to poll the jury, the Court reviewed and accepted the verdict in favor of the Defendants.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Defendants, James R. Higgins, M.D., Cardiology of Tulsa, Inc., John R. Hood, M.D., and Gastroenterolo-gy Specialists, Inc., have judgment in their favor and against the Plaintiffs, James G. Rodgers and Betty J. Rodgers, and for the Defendants statutory taxable costs herein ex-pended_” [Emphasis provided.]
. Jaco, supra note 1 at 364.
. For the terms of
. The Rodgers have cast the trial court‘s mid-trial ruling in terms of an order sustaining a “demurrer” on the “warranty claim ” and on the “fraud and misrepresentation claim.” They state that “the Court directed a verdict on the issue of warranty” and that appellants did not get a jury trial on “three of their causes of action.” The Rodgers not only confuse a theory of recovery with a “cause of action,” they also intermix the trial court‘s failure to instruct the jury on an alternative liability theory with its “direction of a verdict.” The record shows that the trial court did not direct a verdict in any defendant’s favor. Rather, it let the jury decide whether the defendants were negligent, hut withheld from the triers consideration of the theories deemed unsupported by the plaintiffs’ proof. See infra note 24.
. For the terms of the March 26 entry, see supra note 9.
. When a claim for damages arises from one occurrence or transaction, it affords the plaintiff but a single cause of action. See Eason Oil Co. v. Howard Engineering, Okl., 755 P.2d 669, 672 n. 13 (1988); Chandler v. Denton, Okl., 741 P.2d 855, 862-863 (1987); Reams v. Tulsa Cable Television. Inc., Okl., 604 P.2d 373, 374-376 (1979); Retherford v. Halliburton Co., Okl., 572 P.2d 966, 968-969 (1978).
. See in this connection Silver v. Slusher, Okl., 770 P.2d 878, 882 n. 11 (1989), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989). See supra note 4 for Rodgers’ theories of recovery.
. For the Rodgers’ arguments, see supra note 12.
. See Holbert v. Echeverria, Okl., 744 P.2d 960, 962 (1987), where the plaintiff separately pleaded “claims ” for (1) breach of contract, (2) fraud and misrepresentation and (3) violation of the Consumer Protection Act. We there recognized these “claims ” as but three distinct and alternative theories of recovery rather than as separate causes of action. This mischaracterization of theories as claims is also true here. See also Chandler, supra note 14, 741 P.2d at 862-863, where, in applying the savings statute,
. In his presubmission ruling the nisi prius judge recognized that he was dealing with theories of recovery rather than with separate claims; he initially stated, “[a]s to the legal theory of recovery based on informed consent [negligence], I think there‘s an issue of fact . . .” and then lapsed into the parties’ terminology by saying that he would “sustain the demurrers” with respect to a “cause of action” for breach of warranty, fraud and misrepresentation. [Emphasis provided.]
. Chandler, supra note 14, 741 P.2d at 862 n. 13; Doss Oil Royalty Co. v. Texas Co., 192 Okl. 359, 137 P.2d 934, 939 (1943).
. Silver, supra note 15, 770 P.2d at 881; Doss, supra note 19, 137 P.2d at 939.
. Bradley Chevrolet, Inc. v. Goodson, Okl., 450 P.2d 500, 502 (1969); Vogel v. Rushing, 202 Okl. 277, 212 P.2d 665, 667 (1949).
. Issues pressed in multiple interrelated claims or involving multiple parties cannot be deemed “finally” decided until all of the issues stand resolved. The terms of
“When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the preparation and filing of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the judgment adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk.” [Emphasis provided.]
. See
. Rodgers urges that “the court erred in directing a verdict in favor of Defendants James R. Higgins, M.D. and Cardiology of Tulsa, Inc., at the close of Plaintiff’s evidence, on the issue of express warranty.” Although the breach of warranty theory may have been asserted only against Dr. Higgins and his employer, the case went to the jury on a negligence theory against all four defendants — i.e., the trial judge did not direct a verdict against any of the defendants. He merely ruled that the proof adduced in the case did not warrant its submission to the jury on the two withheld theories of recovery.
. A trial court’s ruling that withholds from submission grounds of recovery deemed legally inapplicable or unsupported by the proof is not ap-pealable as “final,” but if preserved as error, may be reviewed in an appeal from the judgment in the case or from postjudgment denial of a timely new trial motion. Schepp v. Hess, Okl., 770 P.2d 34, 36 n. 2 (1989).
. For the definition of “unreserved acceptance,” see supra note 7.
. See
. Jaco, supra note 1; McGinnis v. Republic-Underwriters Insurance Company, Okl., 830 P.2d 191 (1992); Peabody v. Gem Homes, Inc., No. 79,358 (unpublished order of June 9, 1992); The Bank of Woodward v. Johnston, No. 79,120 (unpublished order of June 22, 1992); Moss v. Davis, No. 79,503 (unpublished order of July 13, 1992); Manning v. Coats, No. 80,055 (unpublished order of Oct. 12, 1992); The Antiquary v. Grady Kelley, No. 79,220 (unpublished order of Oct. 26, 1992); Lee v. Knight, No. 79,781 (unpublished order of December 14, 1992); Brown v. The Firestone Tire & Rubber Co., No. 79,598 (unpublished order of January 11, 1993); Day v. Muetzel d/b/a C & G Laundry, No. 80,088 (unpublished order of Jan. 25, 1993); Shade v. Chanie, No. 80,408 (unpublished order of Feb. 1, 1993).
. The terms of
. Art. 2, § 19, Okl. Const., preserves inviolate the right to trial by jury, according to the course of common law. The dichotomous division of our decision-making regime into “law” and “equity” process is constitutionally mandated rather than artificially spawned by this case. One of the dissents is simply incorrect in suggesting that the law/equity dichotomy is not sanctioned by our fundamental law.
. The terms of
“The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court....” [Emphasis provided.]
Within the meaning of
The judgment roll’s statutory definition has remained the same for over 100 years. For an extensive discussion of the judgment roll, its history, and its elements, see A. Freeman, A Treatise of the Law of Judgments §§ 175-193 (5th ed. 1925).
. Section 696.1 provides a mechanism to keep the general verdict from becoming a judgment if there be unresolved legal questions. Transmutation of verdict into judgment cannot be prevented by judicial silence; it can be done only by an affirmative act of the judge who explicitly reserves (withholds) the verdict’s immediate entry as a judgment. For the terms of § 696.1, see supra note 1.
. This meaning of § 696.1 is in complete accord with federal jurisprudence that construes
. A “new” Judgments and Appeals Act, which went into effect on January 1, 1991, was repealed on June 1, 1991. Okla.Sess.Laws 1991, c. 251, § 22, eff. June 1, 1991. The short-lived Act had repealed, inter alia, §§ 696 and 697. See Okla.Sess.Laws 1990, c. 251, § 20, eff. Jan. 1, 1991. In 1991 the cited sections were reinstated in their entirety as §§ 696.1 and 697.1. Okla. Sess.Laws 1991, c. 251, §§ 6 and 7, eff. June 1, 1991.
. The terms of
“Every judgment shall be set forth on a separate document. * * * ”
. The pertinent terms of
“The trial court shall promptly prepare and sign the judgment and deliver it to the court clerk for filing after a general verdict of a jury.... The forms in subsection E of this section shall be used in preparing the judgment.” [Emphasis provided.]
. Section 696 is a time-tested rule adopted at statehood from the New York Field Code of 1848.
. At common law judgment did not immediately follow rendition of a verdict. A central court sitting en banc at Westminster [King‘s Bench, Common Pleas or the Exchequer] would order judgment to be entered on a verdict. J. Koffler and A. Reppy, Handbook of Common Law Pleading § 303, 565-566 (1969). For an explanation of the nisi prius system, see Sir Matthew Hale, The History of the Common Law of England 166 (the University of Chicago Press 1971) and Sir William Searle Holdsworth, A History of English Law 278, 282 (7th ed. 1966); see also L.B. Curzon, English Legal History 172 (1968).
Our legislature abrogated at statehood the preexisting common law by allowing general unreserved verdicts to become transmuted into judgments by force of law and without judicial intervention. Oklahoma‘s early repudiation of the common-law practice that required judicial imprimatur for verdicts is in full force today. The § 696.1 command was recently applied in Jaco, supra note 1. For other extant jurisprudence, see supra note 28.
. “There is no principle of law more firmly established than that the judgment must follow and conform to the [general] verdict [in a common-law action].” Smith v. Eagle Mfg. Co., 25 Okl. 404, 108 P. 626, 627 (1910).
. See
. See
. The terms of §§ 696.1 and 990A both became effective June 1, 1991. The provisions of § 696.1 follow verbatim those in former § 696. The section‘s language is exactly the same today as it was at statehood.
. Horath v. Pierce, Okl., 506 P.2d 548, 553-554 (1973). Our canons of statutory construction are in accord with national jurisprudence. 1A Sutherland Statutory Construction § 22.33 (1985 Revision, 4th ed.), citing In re Swartz‘s Estate, 162 Mise. 46, 294 N.Y.S. 896, 902 (1937).
. See Austin v. King, Okl., 404 P.2d 1009, 1014 (1965); Peoples Electric Co-Op. v. Broughton, 191 Okl. 229, 127 P.2d 850, 853 (1942); Arkansas Louisiana Gas Company v. McBroom, 526 P.2d 509, 512 (Okl.App.1974) (approved for publication Sept. 12, 1974); Grzys v. Connecticut Co., 123 Conn. 605, 198 A. 259, 261 (1938).
. Letteer v. Conservancy District No. 30, Okl., 385 P.2d 796, 800-801 (1963); Tom P. McDemott, Inc. v. Bennett, Okl., 395 P.2d 566, 569-70 (1964). National jurisprudence is in accord. See Sutherland, supra note 43 at § 22.30, citing City of Stamford v. Town of Stamford, 107 Conn. 596, 141 A. 891, 894-95 (1928).
. For the pertinent terms of the repealed § 1001A, see supra note 35.
. For the pertinent terms of the repealed § 1001C, see supra note 36.
. See § 696.1, supra note 1.
. Okl., 671 P.2d 672, 673-74 (1983).
.. A verdict that leaves nothing for the judge to do but simple arithmetic is a general verdict governed by § 696.1. Gizzi, infra note 69, 564 P.2d at 1013.
. Austin, supra note 44, 404 P.2d at 1014; Little v. Employer‘s Casualty Co., 180 Okl. 628, 71 P.2d 687, 688 (1937); Callander v. Hopkins, 97 Okl. 41, 222 P. 672, 673 (1924).
. For the explanation that entry presupposes filing, see infra this part.
. Notice of intent to appeal could be given in open court after rendition of judgment or in writing within ten days of that event. See
. Little, supra note 51, 71 P.2d at 688.
. See
. Callander, supra, 222 P. at 673 note 51; Little, supra, 71 P.2d at 688 note 51.
. McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1335 (1981). The appearance docket is not a part of the court‘s judgment roll. The latter is the court’s only official memorial and the only medium through which it speaks. Elliott v. City of Guthrie, Okl., 725 P.2d 861, 863 (1986). The appearance docket is nothing more or less than a chronological index of filings and an abstract of significant courtroom events in a case. See
“On the appearance docket [the clerk] shall enter all actions in the order in which they are brought . . . [including] an abstract of all judgments and orders of the court. An abstract shall contain a very brief description of the order or judgment rendered....” [Emphasis provided.]
. At common law the “judgment roll” was a roll of parchment upon which the critical stages of court proceedings would be entered. On an action‘s termination the roll was deposited in perpetuam rei memoriam (in perpetual memory). After paper replaced parchment as a universal writing medium, the roll fell into disuse, but the term was carried over to describe the content of the court’s permanent record required to be kept by the clerk.
. None of the cases cited in the dissents teach that “filing” and “entering” are mutually exclusive and inconsistent acts.
. The terms of
. See Nat. Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127, 1129 (1915), citing Covington v. Fisher, 22 Okl. 207, 97 P. 615, 617 (1908).
. The terms of
The court clerk is no longer required to keep an execution docket and a lien journal. See 12 O.S. 1981
. At one time failure to enter a judgment upon the court‘s journal affected its validity. The terms of
Justice Jackson, writing in 1970, freed us from the requirement of proving a judgment by its entry on the journal. Cumby v. State Ex Rel. Vinzant, Okl., 468 P.2d 490, 493 (1970). Later,
“Upon the journal record required to be kept by the clerk of the district court in civil cases . . . shall be entered copies of the following documents on file:
⅝ * *
2. All instruments filed in the case that bear the signature of the judge and specify clearly the relief granted or order made.” [Emphasis provided.]
Implicit in Vinzant and in § 24 is the notion that no judgment can be entered on the journal unless it has first been filed in the case. The same reasoning firmly supports the conclusion that a judgment may be neither incorporated into the judgment roll nor posted on the appearance docket until it has first been filed in the case.
. For the explanation of judgment roll, see supra notes 31 and 62.
. Austin, supra note 44, 404 P.2d at 1014; Callander, supra note 51, 222 P. at 673; Little, supra note 51, 71 P.2d at 688.
. Clifton v. Clifton, Okl., 801 P.2d 693, 696 (1990); Ledbetter v. Oklahoma Alcoholic Bev. Laws Enforcement, Okl., 764 P.2d 172, 179 (1988).
. Farris v. Cannon, Okl., 649 P.2d 529, 531 n. 4 (1982).
. By the command of Art. 7, § 15, Okl. Const., “[i]n all jury trials the jury shall return a general verdict,” but the court may in its discretion direct the jury to make special findings. [Emphasis provided.]
. If the verdict is not wholly determinative of the recovery right, it is special. An addition of special findings of fact will not rob a verdict of its attribute as a general verdict if the jury finds either in favor of the plaintiff or the defendant. Art. 7 § 15, Okl. Const.; Smith v. Gizzi, Okl., 564 P.2d 1009, 1013 (1977).
. Compare
. A literal translation of the Latin words de cursu is “of course.” See Chamberlin v. Chamberlin, Okl., 720 P.2d 721, 726 n. 25 (1986). In the context of
. The terms of
“Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered.” [Emphasis provided.]
. For the terms of
. See
. See § 990A, supra note 29.
. F.D.I.C. v. Tidwell, Okl., 820 P.2d 1338, 1341 (1991).
. Grand River Dam Authority v. State, Okl., 645 P.2d 1011, 1019 (1982); AMF Tubescope Company v. Hatchel, Okl., 547 P.2d 374, 379 (1976).
. The pertinent terms of
. Schepp, supra note 25, 770 P.2d at 37 n. 9; Salyer v. National Trailer Convoy, Inc., Okl., 727 P.2d 1361, 1363 n. 5 (1986).
. The filing of a motion for new trial extends appeal time. The pertinent terms of
“The right of a party to perfect an appeal from a judgment . . . of the trial court to the Supreme Court shall not be conditioned upon his having filed in the trial court a motion for a new trial, but in the event a motion for a new trial is filed in the trial court by a party adversely affected by the judgment . . . no appeal to the Supreme Court may be taken until subsequent to the ruling by the trial court on the motion for a new trial. * * * ” [Emphasis provided.]
See authorities supra note 79.
.The pertinent terms of
“A. The judgment docket shall be kept in the form of an index . . . and it shall be the duty of the clerk immediately after the rendition of a judgment and the filing, by a party for whom judgment was rendered, of an affidavit of judgment . . . to enter on said judgment docket a statement containing the names of the parties, the amount and nature of the judgment and costs, and the date of its rendition and the date on which said judgment is entered on said judgment docket....” [Emphasis provided.]
Until flat fees for the clerk’s services were introduced by the provisions of
. If the dissents’ views were to be adopted today, the trigger for the thirty-day period for vacation of judgments would become clouded. The pertinent terms of
“Within thirty (30) days after the rendition of a judgment, the court, of its own initiative or on motion of a party, may correct, open, modify or vacate a judgment. [Emphasis provided.]
. The pertinent terms of
“All judgments of courts of record shall bear interest at a rate prescribed pursuant to subsection B of this section . . . from the date of rendition. * * * ” [Emphasis provided.]
. Undertakings to stay execution under 12 O.S. 1991
. Mabee Oil & Gas Co. v. Price, 198 Okl. 510, 179 P.2d 916, 918 (1947).
. Ind. School Dist. v. Okl. City Fed. of Tchrs., Okl., 612 P.2d 719, 724 (1980).
. Ind. School Dist., supra note 86, 612 P.2d at 722.
. Even where uniformity appears to carry the day, there will always be room for lawyers to make mistakes. See, e.g., Allen v. Horinek, 827 F.2d 672, 673 (10th Cir.1987), where an appeal was dismissed because it was filed too early. Premature appeals are not unknown to our own jurisprudence. See Matter of Estate of Nation, Okl., 834 P.2d 442, 443 (1992).
. The pertinent terms of
. The pertinent terms of
“If execution is not issued and filed as provided in Section 759 of this title or a garnishment summons is not issued by the court clerk within five (5) years after the date of any judgment that now is or may hereafter be rendered in any court of record in this state . . . such judgment shall become unenforceable and of no effect, and shall cease to operate as a lien on the real estate of the judgment debtor....”
Under one dissent‘s analysis, the five years might start to run on the date judgment was given by operation of
. For the statutory symmetry of an executable judgment’s entry for three different classes of deciding mechanism under
. If the dissents’ legislatively rejected approach were adopted today, judges would have the power to alter the incidence of a general unreserved jury verdict by postponing the filing of its memorialized entry. The judgment debtor might be subjected to successive executions before appeal time starts to run. Uncertainty over when the judge might sign a memorialized entry could create confusion in setting the penal sum for supersedeas or stay bonds and foster additional litigation over whether the judgment debtor received due notice that a judge-signed entry had been filed. For additional explanation, see infra note 99.
. Black’s Law Dictionary 1261 (5th ed. 1979).
. William O. Douglas, Stare Decisis, 49 Co-lum.L.Rev. 735, 736 (1949).
. Edge v. Smith, Okl., 284 P.2d 711, 715 (1955); Jackson v. Twin State Oil Co., 95 Okl. 96, 218 P. 324, 328 (1923); Webb v. Semans, 110 Okl. 72, 235 P. 1074, 1077 (1925).
. One dissent hints that Jaco‘s teachings have resulted in a large number of dismissals; we know of only one. See infra the text at note designation 98 and Day, supra note 28.
. Planned Parenthood, infra note 115, -U.S. at-, 112 S.Ct. at 2809-2816.
. See Day, supra note 28.
. We have long refused to permit a trial court to extend the time for taking an appeal by vacating the judgment from which appeal is sought and reentering it at a later date. Starr v. Woods, 162 Okl. 242, 19 P.2d 561, 562 (1933).
. See supra note 28.
. The pertinent terms of Art. 7, § 4, Okl. Const., provide:
“The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; * * * The appellate and the original jurisdiction of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law.” [Emphasis provided.]
.
“The parties may waive any defect or error in perfecting an appeal except the timely filing of a petition in error_” [Emphasis provided.]
. For the terms of
. For the terms of
. See
. See
. The dissent‘s statement that because the terms of
. Jaco has governed ever since its effective date. See the cases supra note 28.
. See Jaco, supra note 1, 823 P.2d at 364.
. ” * * * it is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. * * * ” [Emphasis provided.] Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (1951) (Douglas, J., concurring).
. United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973).
. Snyder v. Smith Welding & Fabrication, Okl., 746 P.2d 168, 171 n. 1 (1986) (supplemental opinion on rehearing); Pryse Monument Co. v. District Court Etc., Okl., 595 P.2d 435, 438 (1979).
. A single delictual occurrence gives rise to but one cause of action or to one legal claim. Retherford, supra note 14, 572 P.2d at 968-969.
. Jaco, supra note 1, 823 P.2d at 364-365 and the cases supra note 28.
. In an opinion which holds that the doctrine of stare decisis requires reaffirmance of Roe v. Wade’s core holding, Justice O’Conner explains that overruling precedent without the most compelling of reasons would overtax the country‘s belief in the judiciary‘s good faith and cause the Court‘s legitimacy to fade with the frequency of its vacillation. Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. -, -, 112 S.Ct. 2791, 2815, 120 L.Ed.2d 674 (1992).
Dissenting Opinion
dissenting:
In resolving the jurisdictional question— when did the appeal time in this case begin to run — the majority classifies “common law actions” for special appellate treatment. Under today’s opinion, an unreserved general verdict in a “common law action” tried to a jury becomes the appealable judgment of the court when it is entered by the court clerk. That is, the appeal time will run from the rendering of the jury verdict. Further, under today’s opinion, appeal from an unreserved jury verdict in a “common law action” is restricted to those issues submitted to the jury. That is, the parties are denied a right to appeal issues not submitted to the jury. Classification of “common law actions” separate and distinct from other civil actions for limitation of appeal time and restriction of appealable issues is untenable.1 It is inconsistent with
In this medical malpractice ease, the trial court sustained several of defendants’ demurrers to the evidence. The general verdict returned by the jury did not dispose of the warranty, fraud and misrepresentation issues which were withheld from the jury. The petition in error seeks review of errors committed by the trial court in sustaining the mid-trial demurrers to the evidence. In deciding the untimeliness of this appeal, the majority finds that under our transitional approach to “causes of action” appellants are not entitled to an appeal from the trial court’s mid-trial rulings on the demurrers to the evidence — that the only appealable issues are those determined by general jury verdict. I disagree.
The appellants have a right to appeal the sustaining of appellees’ mid-trial demurrers to the evidence. The appeal must be perfected within thirty days of the recording of the judgment that disposes of all the issues.4 The petition in error herein was filed within thirty days of the recording of the trial court’s judgment.5
Trial was had in this case approximately one month before publication of our order in Jaco Production Company v. Luca, 823 P.2d 364 (Okla.1991), holding that the appeal time
The Jaco holding rests upon
When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration. [Emphasis added.]
The only sensible and reasonable reading of the plain words of
A. It is the duty of the court to write out, sign and record its orders, judgments and decrees within a reasonable time after rendition....
B. A recorded written order, judgment or decree signed by the court is a jurisdictional prerequisite to appellate review. [Emphasis added.]
Nothing in
Under today’s ruling, the appeal time in those “not common law actions” will run from the filing of the written journal entry signed by the trial judge in accordance with the latest statutory changes and the parties will be entitled to appeal all issues raised before the trial court, including issues withheld from the jury. But, the appeal time in “common law actions” tried to a jury will continue under the old appellate regime — the appeal time will be triggered by the pronouncement
In this case, judgment was rendered on March 6, 1992, when the trial court accepted the verdict and discharged the jury. The judgment signed by the trial judge and entered in the record on March 26, 1992 is the appealable judgment. Accordingly, this appeal ⅛ timely. I dissent to dismissal of this appeal and join the dissent by Justice Summers.
. Serious procedural confusion is certain under today’s opinion. Case by case, the appellate courts will have to classify actions as “common law” or “not common law.” This civil action, based on medical malpractice or medical negligence, fraud, misrepresentation, consent and warranty theories, is classified as a “common law action,” even though those theories are recognized in our statutes. In our order in McGinnis v. Republic-Underwriters Insurance Company, 830 P.2d 191 (Okla. 1992), this Court refused to apply Jaco Production Company v. Luca, 823 P.2d 364 (Okla.1991). We said that a special statutory postjudgment garnishment proceeding is not a “common-law action.” However,
.
.
.
.The journal entry, memorializing the mid-trial rulings and granting judgment on the jury verdict, was filed on March 26, 1992, and provides:
On March 6th, Plaintiffs completed their evidence and rested and the Defendants interposed demurrers on the warranty claim which was sustained; on the fraud and misrepresentation claim which was sustained; on the consortium claim which was overruled; and the informed consent claim which was overruled. The Defendants proceeded to put on evidence and rested on March 6th. There being no rebuttal, the Court instructed the jury and closing arguments were made by both sides. After due deliberation, the jury returned into open court with their ten (10) person verdict signed by ten (10) jurors. The Court examined the verdict forms as well as the attorneys and there being no request to poll the juiy, the Court received and accepted the verdict in favor of the Defendants.
The petition in error was filed with this Court on April 17, 1992.
.In Martin v. Liberty National Bank and Trust Company of Oklahoma City, Oklahoma, 839 P.2d 179, 180 (Okla.1992), we said that “an appeal-able judgment is entered when a record entry was signed” by the judge. Consistent with Martin, the majority opinion correctly says that “(r)ecord entry is never effected by a clerk’s minute posted on the appearance docket; the appearance docket is nothing more or less than a chronological index of filings and an abstract of significant courtroom events.” Yet, it is the appearance docket entry that is before this Court. It is the mere entry of the. jury verdict in the appearance docket which the majority finds triggered the appeal time.
Attached to appellant’s response to the dismissal request is a copy of the Daily Minutes for March 6, 1992 filed in the office of the Tulsa County Court Clerk on March 11, 1992, which is substantially the same as the entry on the appearance docket attached to appellees’ dismissal request. The appearance docket is labeled “Civil Action Docket, Clerk of Court, Tulsa County, Oklahoma, Judge, DIV-D-7 — Hon. DJ. BOU-DREAU, File Date, 05/25/90, Case ID CJ-TU-90-002558-07, Medical Mal-Practice.” The entry under the date of March 6, 1992, is an abstract of the trial proceeding, including the verdict returned by the jury and accepted and recorded by the trial court.
. Prior to 1990, the thirty day time in which an appeal could be perfected was triggered by the pronouncement of judgment. Martin v. Liberty National Band and Trust Company of Oklahoma City, Oklahoma, 839 P.2d 179 (Okla.1992). In 1990, the statutes were amended providing the appeal time be calculated from the filing of the judgment. 1990 Okla.Sess.Laws, ch. 251, § 4. The filing of the judgment is the event which begins the appeal time limitation under the latest amendments. 1991 Okla.Sess.Laws, ch. 251.
. Strictly adhering to
Dissenting Opinion
dissenting.
My analysis of the relevant statutes is that when a judgment is pronounced on a jury verdict the thirty-day time to appeal begins to run from the date the journal entry of judgment is filed in the case. This analysis is contrary to the court’s recent opinion in Jaco Production Co. v. Luca, 823 P.2d 364 (Okla.1991), and, of course, to today’s case.
Prior to January 1, 1991 an appeal was commenced in this Court by filing a petition in error within thirty days of the date of the final order or judgment.
Beginning on January 1, 1991 prior law was repealed3 and the thirty-day appeal time began to run only when the judgment was “filed” with the district court clerk.
Starting June 1, 1991, and continuing to the present, the thirty-day appeal time begins to run on the date “judgment is filed.”
The majority’s analysis on calculating the time to appeal this judgment based on a jury’s verdict can be expressed by this syllogism:
1. The verdict is a judgment.
2. The verdict was filed on the day it was returned.
3. Therefore, the judgment was filed on the day the verdict was returned.
My departure from this analysis begins with its first premise. A verdict is not a judgment. Not under the common law, and not under
The majority recognizes that at common law a verdict is not a judgment. It concludes, however, that
Entering a judgment deemed to have been pronounced by the court is not a judicial act, but a ministerial one. “Entry of judgment” is defined as “a ministerial act performed by the clerk of the court by means of which permanent evidence of [a] judicial act in rendering judgment is made a record of the court.” Black’s Law Dictionary, 625 (4th ed. 1951). Our case-law is in agreement; “The entry of judgment ordinarily consists of the ministerial act of spreading the same upon the proper judgment record or writing it at large in the book of judgments.” De Watteville v. Sims, 44 Okla. 708, 146 P. 224, 227 (1915). See also Abernathy v. Huston, 166 Okla. 184, 26 P.2d 939, 944 (1933); City of Clinton v. Cornell, 191 Okla. 600, 132 P.2d 340, 342 (1942); Miller v. Miller, 664 P.2d 1032, 1034 (Okla.1983). The entry is not the judgment, but a record or evidence of a judgment. Abernathy v. Huston, 166 Okla. 184, 26 P.2d 939, 944 (1933); Boynton v. Crockett, 12 Okla. 57, 61, 69 P. 869, 871 (1902).
And, of course, entry of a judgment is not synonymous with rendering or pronouncing a judgment. Peoples Electric Co-Op. v. Broughton, 127 P.2d at 853. See St. Louis & S.F.R. Co. v. Taliaferro, 58 Okla. 585, 160 P. 610, 612 (1916), (we explained that at that time an appeal must have been brought within six months of the rendition of the judgment, and not within six months from the “entry” of the judgment); Jaqua v. Harkins, 40 Ind.App. 639, 82 N.E. 920, 922 (1907); Beetchenow v. Bartholet, 162 Wash. 119, 298 P. 335, 336 (1931). Thus, the act of entering a judgment is a ministerial act, distinct from the judicial act of pronouncing a judgment.
Likewise, the “entry” of judgment cannot be equated with “filing” of a judgment. “Filing” is defined as “[t]o deliver an instrument or other paper to the proper officer for the purpose of being kept by him in the proper place.” Black’s Law Dictionary, 755 (4th ed. 1951). Filing a document, and entry of an order or judgment refer to two different
These opinions make perfect sense, because a clerk has a dual duty (1) to make the proper “entry” on a docket,
I conclude that a clerk’s “entry” on a docket is a distinct and separate act from when an instrument is “filed” in a case, that both of these are distinct from the act of pronouncement or rendition of a judgment, and all may occur on different dates. It is true that the clerk will often fulfill his or her duty by entering a judgment on the proper docket upon the date the verdict is returned, i.e., upon rendition. That was done in this case. But we are concerned here with the nature of the instrument required by
While a verdict may be filed in the ease and used to enter a judgment on the proper docket, it cannot be “filed” as a “judgment”, since the verdict itself is not a judgment. The majority appears to hold that a verdict is the judgment for the purpose of an appeal when the verdict is filed in the case. I must respectfully disagree.
In my view, it is the journal entry of judgment that satisfies the descriptive statutory phrase in our present
The majority misreads this writing. Of course there is only one judgment upon a single cause of action. That judgment occurs when it is rendered, or pronounced. In this ease judgment was rendered when the court accepted the verdict of the jury, on March 6th. The Legislature, in a commendable attempt to bring clarity and uniformity to appeals, has gone out of its way to declare that the time for appeal no longer starts when the judgment is rendered, but rather when it is filed. It is only on what constitutes the filing of a judgment that I differ from the majority — I maintain that the verdict itself is not a judgment, and that the judgment, though in existence and even “entered”, is not “filed”
The majority yearns for symmetry in the appeals process, but does not, and in fact cannot, extend it. Jaco itself creates great unevenness, but whether Jaco is retained or rejected, there will still remain the fact that in a bench-tried case the judgment will be rendered and effective the moment it is pronounced, but the time to appeal it will not commence until filing of the journal entry. The legislature has so spoken. I believe the law should be, and, in fact, is, the same for jury-based judgments.
The principle of stare decisis is that courts often uphold principles from prior opinions even though they would decide otherwise were the question a new one, and consider the importance of the law’s stability and the effect of judicial holdings upon property, contracts, and titles. Oklahoma Preferred Finance & Loan Corp. v. Morrow, 497 P.2d 221, 223-224 (Okla.1972); Oklahoma County v. Queen City Lodge No. 197, I.O.O.F., 195 Okla. 131, 156 P.2d 340, 345 (1945); Webb v. Semans, 110 Okla. 72, 235 P. 1074 (1925), (Syllabus by the Court). But the court will not follow prior opinions when they are manifestly erroneous and there are cogent reasons for overruling them. Oklahoma County v. Queen City Lodge No. 197, I.O.O.F., supra. More recently we have said that a substantial departure from precedent should be based upon either unsatisfactory experience with the application of the precedent, or in light of an altered historic environment. Phillips v. Oklahoma Tax Commission, 577 P.2d 1278, 1285-1286 (Okla.1978). This rule applies to matters of procedure. Harris v. Hudson, 122 Okla. 171, 250 P. 532, 533 (1926), cert. denied, 273 U.S. 743, 47 S.Ct. 336, 71 L.Ed. 869 and cert, denied sub nom. Owens v. Harris, 273 U.S. 743, 47 S.Ct. 336, 71 L.Ed. 869 (1927), (the supremacy of the law can be maintained only by and through the orderly procedure prescribed by the law itself).
I believe Jaco was erroneous when it was decided and is still erroneous. As to its “experience in application”, one only has to look to the majority opinion, which cites several very recent cases invoking the rule of Jaco, although it has had but a short lifetime. If only two, as the opinion states, have resulted in dismissals, that low number may be attributed to the prospective application given the doctrine. It is safe to predict there are others in the same pipeline as today’s appellant, and that more will follow. Jaco established a continuing trap for the unwary litigant who relies on the statutory language only to have his or her right to appeal lopped off. The case should be overruled and this appeal held timely.
.
. Historically, a judgment was considered an act of a court and was thus dated from the rendition or pronouncement by the court and not its entry. See Mooney v. First State Bank, 48 Okla. 676, 149 P. 1173, 1175 (1915) where the court discussed Revised Laws 1910 § 5138 (now 12 O.S. 1991
.
.
.
.
. “When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.”
. At one time a clerk was required to enter a judgment on the judgment docket upon rendition of the judgment. See, e.g.,