[80 Ariz. 370] Herbert B. Finn and Stephen S. Gorey, Phoenix, for appellant.
Langmade & Sullivan, Phoenix, for appellees.
Horace Steele, et al., as appellees, filed a motion in the above-entitled case to dismiss the appeal filed by Harbel Oil Company, a corporation, because it was not taken in time. A ruling on this motion, it appears to us, will be determinative of the appeal. The narrow question presented involves an interpretation of our rules of civil procedure. It is a matter of considerable importance and is one of first impression, hence we deem it advisable to dispose of same by a written decision rather than merely making a minute order as is customarily done.
The relevant facts, which are not in dispute, are as follows: the court, after a trial on the merits, determined that appellant Harbel Oil Company (plaintiff below) was not entitled to the relief sought and judgment was entered for defendants-appellees; a motion for a new trial was timely filed, hearing was had thereon, and the matter taken under advisement. According to the court's minutes, an order was entered on May 10, 1955, denying said motion. The civil docket shows an entry purportedly made on the same date of an 'Order denying motion for new trial'. The record further shows that, in accordance with the practice followed in the clerk's office, a postcard notice was mailed to counsel for appellant which recited on its face that the order in question had been entered on May 10, 1955. Hence no question arises as to appellant's attorney not being fully and promptly advised of the court's ruling. Nevretheless it was not until sixty-two days after the court's denial of said motion for new trial that a formal written notice of appeal accompanied by a cost bond was filed by appellant with the clerk of court on Monday, July 11, 1955. Upon this record counsel for appellees has moved to dismiss the appeal for lack of jurisdiction. Our rules require that an appeal be taken from a judgment within sixty days from the entry of an order denying a motion for a new trial, Rule 73(b), Rules of Civil Procedure. The rule is well settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional, and where the appeal is not timely filed the appellate court acquires no jurisdiction other than to dismiss the attempted appeal. In re Gipson's Estate, 64 Ariz. 181, 167 P.2d 383; Barth v. County of Apache, 18 Ariz. 439, 162 P. 62.
In response to the motion to dismiss, appellant urges that the appeal was timely filed if the proper date is recognized as to when the order in question was actually entered, reliance being had upon an affidavit [80 Ariz. 371] of the clerk of court, coupled with Rule 79 (a). The pertinent part of the latter reads as follows:
'Civil docket. The clerk shall keep a book known as 'civil docket' of such form and style as may be prescribed by the supreme court, and shall enter therein such civil action or proceeding to which these Rules are made applicable. * * * All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted chronologically in the civil docket on the folio assigned to the action or proceeding and shall be marked with its file number. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The notation of an order or judgment shall show the date the notation is made. * * *'
The affidavit of Walter S. Wilson, clerk of court, does not purport to fix precisely when the deputy clerk made the notation in the civil docket; all be does say is that under the practice followed in his office such notation could not have been made on May 10th, but must have been entered on May 11th, at the earliest, or possibly on May 12th. If either of the last two mentioned dates govern, the appeal was taken timely, because July 10th was a Sunday-see Rule 6(a), Rules of Civil Procedure-and the motion to dismiss should be denied.
The problem presented therefore is whether the time for an appeal begins to run from the date the court concededly directed the order to be entered denying the motion for new trial, or when the clerk of court, or his deputy, finally performed the ministerial act of making a notation in the Civil Docket book. In other words, from what date did the time for taking the appeal begin to run? There can be no dispute with the very plain language of Rule 73(b) to the effect that the time for an appeal begins to run from the 'entry of the judgment or order appealed from'. On the facts of this case, what then does 'entry' mean under our rules? And when was the order in question really entered? The answer to these questions depends in part upon a common sense interpretation of all of the pertinent rules of court.
Rule 58(a) provides the definition of what constitutes entry of judgment, to wit:
'Judgment shall be entered when the court so directs. When the direction is that a party recover only money or costs, or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction, * * *. In cases of judgments for money or costs only, or that all relief be denied, the notation thereof in the civil docket, as provided by Rule 79(a) constitutes the entry of such judgment, * * * and in either case [80 Ariz. 372] the judgment is not effective before such entry. * * *' (Emphasis supplied.)
The rule as above stated contains a patent ambiguity as to the date upon which a judgment or order shall be deemed to be entered. The first part thereof clearly gives the court control over fixing the date of judgment, i. e., it shall be entered 'when the court so directs', and here that explicit direction was given on May 10th. Furthermore it is significant this sentence is not found in the counterpart of the federal rule. And speaking specifically about the time element the clerk is told to make the entry 'forthwith upon receipt by him of the direction'. The generally accepted meaning of 'forthwith' is immediately-without delay-promptly. Were this all that the rule provided, no question seemingly could arise here that the date of the court's direction, to wit: May 10, 1955, was the date of entry. However, the provision is then made that notation in the civil docket 'constitutes the entry of such judgment.' Rule 73(a) then provides that 'The notation of an order or judgment shall show the date the notation is made.' It is argued that the notation date-in this instance May 11th or possibly May 12th-sets the time for appeal running. The difficulty with this contention is that it is totally at odds with the mandate of the first part of the rule. Were the latter date to be made controlling, the entry would be neither forthwith nor upon receipt of the direction and in effect would nullify the specific provision of Rule 58(a). Equally important, it would not be the date of entry directed by the court.
It should be noted that we are not here confronted with the application of the last portion of Rule 58(a) where formal written judgment are required, which we discussed in Southwestern Freight Lines v. Shafer, 57 Ariz. 111, 111 P.2d 625; nor with the problem of the clerk's right to refuse to enter a judgment until the judgment fee is paid, considered in Sligh v. Watson, 67 Ariz. 95, 191 P.2d 724; nor with an order entered elsewhere by a visiting judge and transmitted by mail to the clerk as was the case in Fagerberg v. Denny, 57 Ariz. 188, 112 P.2d 581. Here a simple order denying a motion for new trial is involved, no fee was required, and no formal written order was contemplated or necessary.
Admittedly the argument of appellant that the notice of appeal was timely filed, finds support in Moore's Federal Practice, see Vol. 7, Part IX, Appeals, Ch. 73, p. 3147, and in the case of United States v. Moore, 5 Cir., 182 F.2d 336. However, it should be pointed out that the provisions of Federal Rule 58(a), which Professor Moore is discussing, differ materially from our own rule, in that it is provided:
'Unless the court otherwise directs * * * judgment upon the verdict of a
jury shall be entered forthwith by the clerk; * * *.' (Emphasis supplied.)
[80 Ariz. 373] Under the rules as promulgated by this court we have intentionally rejected this practice in Arizona and have adopted instead a rule which places the court 'in the driver's seat', and it is the court's direction and not the clerk's mechanical transcription therefrom which fixes the date of entry of an order such as this.
As to the case of United States v. Moore, supra, we think it is distinguishable on its facts which robs it of any value as an authority. There the question was as to the true date of entry of an order. The written order signed by the district judge recited that the matter came on for hearing before him on October 10th, but advice of his ruling thereon apparently was not transmitted to ...