THE WASHINGTON.

No. 61.

Circuit Court of Appeals, Second Circuit.

December 6, 1926.

*207 *208 Bertha Rembaugh, of New York City, in pro. per.

James W. Ryan and Bigham, Englar & Jones, all of New York City, for libelants Hallin and De Matteis.

George A. Voss, of New York City (Alton W. Teale, of New York City, of counsel), for respondents James Auditore & Co. and another.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The statute (Act March 3, 1891, c. 517, § 11 [Comp. St. § 1647]) requires that appeals from the District to this Court shall be taken "within six months after the entry of the * * * decree," and if this decree was entered on or before November 22, 1924, the appeal is too late.

That it was signed, and intrusted to the clerk to be treated as law and practice required on September 18, 1924, is not doubted, and it is plain that the clerk did not so treat it. The explanation of his conduct is no excuse. It may be admitted that, under some circumstances, a clerk may have physical possession of a signed decree and yet refuse to enter it, because the fees required by law to be paid him are not discharged. Ommen v. Talcott (D. C.) 180 F. 925. But this decree on its face, and on September 18, 1924, awarded costs to the clerk out of the funds in the registry, whence he could instantly obtain payment. His act in not immediately writing in his docket, under date of September 18, 1924, "Decree signed, Garvin, J.," or words to that effect, is wholly unjustifiable, and constitutes a "misprision in a record," amendable by the court. Groton, etc., Co. v. Clark, etc., Co., 136 F. 27, 68 C. C. A. 577.

It follows that inquiry into the procedural nightmare contained in this record is twofold: First, did the clerk "enter" the decree, notwithstanding his misprision? And (2) can the appellant go behind the record made when misprision amended? Common usage is quite inaccurate in its use of three words, each of which has been at times made a starting point for the time wherein appeal must be taken the words are "rendition," "filing," and "entry." Since all appeals are by statute, it is vital to note from what act time for appeal is dated, and our word is "entry."

But the meaning of none of these words is defined by statute; it is, as usual, assumed that they are of well-known signification. We think they are. "Rendition" of judgment means the "annunciation or declaring of the decision of the court," and not the "entry of the judgment upon the record." Fleet v. Youngs, 11 Wend. (N. Y.) 522.

"Filing" means the delivery of the thing filed into the actual custody of the proper officer keeping the records of the court. It connotes a deposit for permanent preservation. In re Gubelman (C. C. A.) 10 F.(2d) 926. "Entry," or entering, is ordinarily synonymous with recording. It connotes a duty greater than, or additional to, that preservation which is the essence of filing. Lent v. New York, etc., Co., 130 N. Y. 504, 29 N. E. 988.

"Filing" and "entry" imply, one keeping a document among, and the other extending the document upon, the records of the court; and while records were once "memorials or remembrances in rolls of parchment of the proceedings and acts of a court of justice" (O'Connell v. Hotchkiss, 44 Conn. 51, citing cases), they have long come to signify an orderly history of causes and judicial acts written (if the court be of any age) in a long *209 series of volumes, or in separate documents preserved in an orderly manner.

Evidently, therefore, the books kept by the clerk are important; and they are not statutory. R. S. § 750 (Comp. St. § 1604), states what shall be "entered upon the final record" in equity and admiralty, but does not declare what shape that record shall take. R. S. § 828 (Comp. St. § 1383), requires "all books * * * containing the docket or minute of judgments or decrees" to be open for inspection, but does not instruct as to how the books shall be kept. It evidently presupposes (and section 828 dates from 1853) the decree book, etc., as something well known. The present equity rules do prescribe (rule 3) the books to be kept by the clerk on that side of the court, and one of them is a volume for containing all decrees, etc., passed in term time.

But we take notice of the fact that for a very long time the courts of this circuit have kept, as a part of the minutes of the court, a volume known as the decree book, in which are transcribed at length all final decrees (inter alios) in admiralty, and we find the same practice prevailing in the Court of Vice Admiralty for the Province of New York, of which most of the minute books after 1715 are on file in the clerk's office of the Southern district of New York.

The clerk's dockets are to be distinguished from the "judgment docket" described in Polleys v. Black River, etc., Co., 113 U. S. 81, 5 S. Ct. 369, 28 L. Ed. 938, and well known probably in every county in the country. The docket or (in some jurisdictions) appearance docket is a day by day notation of the court happenings of a cause; there is no statute requiring it to be kept in any particular way, and the keeping of one evidently grew out of convenience in keeping abreast of increasing business, for before 1834 there are no docket books in the oldest New York district (the Southern); the minute book was enough, which did not assign a page to each case, but told the story of the court and all its cases from day to day. The docket has become an account book only since about 1912, and that for the convenience of the examiners of the Department of Justice, in tracing the charges against the deposit exacted from a litigant on taking out process.

It was against this background that the District Judge made the decree and the clerk acted. We have pointed out that, under the circumstances, the clerk had no right to withhold or delay the decree for any purpose; but even if the costs had not even been taxed, and a blank been left for them, the decree was final, and the time for appeal would begin to run despite the blank. Prescott, etc., Co. v. Atchison, etc., Co., 84 F. 213, 28 C. C. A. 481.

Even if the decree had directed some things to be done in future, it would have been final nevertheless. Radford v. Folsom, 131 U. S. 392, 9 S. Ct. 792, 33 L. Ed. 203. Furthermore the language of the decree as signed on September 18, 1924, never changed, there was no amendment or addition, and the situation shown in Rubber Co. v. Goodyear, 6 Wall. 153, 18 L. Ed. 762, did not and does not exist.

Result is that the decree appealed from was filed (i. e., received and kept by the clerk as an operative and valid act of the court), and it was entered (i. e., spread upon the records of the court), certainly before November 1, 1924, as we think; but the burden of proving anything to the contrary is on the appellant, and it has not been borne.

If the clerk had noted the filing of decree in the usual way, by stamping the date upon it and noting it in the docket as filed September 18th, the document would have been deemed filed, entered and/or recorded on September 18th, just as (to take a familiar instance) a deed tendered for record is deemed recorded the day, hour, and minute of its reception by the recording officer, though the actual extension in the books of record may not occur for months. We are satisfied that the holding below that the decree was "entered on or about September 18th" was correct; therefore the appeal taken more than nine months later was too late.

We have preferred, somewhat laboriously, to declare the result below, made after examining the facts, to be correct. But, if we pick out of this record what ought to be in it as an admiralty appeal (under our rule 4 in admiralty), we are confronted by the following situation, viz.: The District Court made a decree which, according to the records of that court when the appeal was taken, was filed and entered on September 18, 1924.

By a series of affidavits and motions, not at all interlocutory, because they were all made after September 18, 1924, the situation is shown which we have above considered. A strict adherence to the doctrine of Lurton, J., in Re McCall, 145 F. 898, 76 C. C. A. 430, and First National Bank v. Yerkes, 238 F. 278, 151 C. C. A. 294, would justify us in saying that the order book and docket of the court below, being records of that court, impart absolute verity, and it does not lie in the mouth of an appellant to dispute that verity on appeal; the remedy is by proceeding *210 against those who falsified the record itself.

Decision is put upon the ground first stated, and that disposes of the case. This opinion is written because the questions of practice suggested are not unimportant. The writer of the opinion is the less unwilling to put decision on a procedural point because, after examination of the claims advanced so long ago, he thinks the decision on the merits below correct.

Appeal dismissed, with costs.