STEWART MENZIES et al., Respondents, v. HENRY JAMES WATSON et al., Appellants, 105 Cal. 109

Temple, C. This is an appeal from an order made after judgment. It is a proceeding after judgment to correct an alleged mistake as to the date of the entry of the judgment. The record does not show how the alleged error affects any rights of the moving party, but it is stated in the briefs that the defendant, having taken an appeal from the judgment, was confronted in this court by a motion to dismiss the appeal on the ground that it was taken more than one year after the judgment was entered. The judgment purports to have been entered December 6, 1892. The appeal was taken December 8, 1893.

The moving party does not pretend to know when the judgment was actually entered, but claims that it was not before December 10, 1892. The motion was based principally upon the affidavit of H. A. Massey, who was a clerk for Mastick, Belcher & Mastick, who were the attorneys for the defendants. His affidavit is broad enough, perhaps, to entitle the defendant to the relief demanded, but the affiant was also called as a witness at the hearing of the motion, and his cross-examination shows that he did not know all the matters stated in his, affidavit to be true.

He was sent to the clerk’s office “ to obtain copies of the findings in said cases and of the judgments therein, if he should find that such judgments had been entered.” He went there, as it otherwise appeared, on the 8th of December, 1892. He found the findings, but could not find the judgment. He inquired, and was sent to the room where judgments are copied into the judgment-book. He asked several clerks there about it, but they knew nothing of it.

He was finally directed to a certain copyist who was copying judgments into the judgment-book, and together they looked through the book and found that the judgment had not been copied there. He did not look through more than one judgment-book to see whether the judgment had then been recorded. He did not remember whether there was a judgment-roll, or whether the judgment was docketed. He did not remember whether the register showed that the judgment had been entered or the judgment-roll filed. The judgment-roll was apparently filed on the 5th— or at least that is what the register shows.

On that day the judgment appears to have been docketed. All this is in direct violation of plain provisions of the statute.

Section 663 provides that judgments shall be entered in the judgment-book. There is no other “ entry” of judgments mentioned in the code. After this entry, and not before, the judgment-roll can be made up and filed. (Code Civ. Proc., sec. 670.) After this, and not before, the judgment can be docketed and a judgment lien created. (Code Civ. Proc., sec. 671.) But the testimony of the deputy clerk and the copyist shows a state of things still more surprising.

The deputy in charge of this part of the work in the clerk’s office testified that the date of the record in the judgment-book, and the date of the filing of the judgment-roll, and of the docketing of the judgment are not necessarily the true dates, and were not' intended to show such date.

The deputy says: “In no case, how- ever, does the date indorsed at the foot'of the record of judgment in said judgment-book necessarily indicate the date at which the clerical work of writing such judgment in said judgment-book was done, and in many cases judgments were actually written into said judgment-book at a later date than that so indorsed thereupon.” And it seems the register and the docket are kept with a like disregard of truth as to dates.

In the whole range of the duties of the clerk there is none more important than the duty of keeping a true history of the time when this “ clerical ” work was actually done. Under our practice it is the initial point of many rights. To willfully make a false certificate as to these matters is a violation of official duty. In this case it is quite possible, if the truth could be ascertained, that defendant has not lost his right of appeal. But, unfortunately for him, he has not been able to show it.

The deputy and the copyist were unable to remember when the judgment was actually entered, and although both confessed that, notwithstanding all the official entries which were designed to show when it was done, it may have been entered later. As the burden was upon the moving party it must be held that he has not made out his case. Quite possibly he is a loser through this vicious practice in the clerk’s office.

The explanation of the practice seems to be that the deputy knew that a deed was deemed to be recorded when filed for record, and he thought a judgment should be deemed entered when the attorney ordered it to be entered. But he is working under a very different statute and one which plainly makes the date of the actual entry of the judgment the material matter. Even under that view it is difficult to see where he acquired his idea as to the filing of the judgment-roll and the docketing of the judgment.

The counsel for the appellant say that the learned judge below declined to consider other evidence because he was of the opinion that the record evidence was of such a high nature that he could not go behind it. The record does not show this, and, even if it did, we could not consider the evidence as though this were a trial court. If the learned judge did take that view of the matter, however, I am not sure that he has not reason on his side. The matter of the date of the actual entry of the judgment is so important that perhaps public policy would require that the certificate shall be held conclusive.

Except, of course, when the clerk may be sued for damages for having made a false entry. Whether this be so or not is not essential here, and the matter is not decided. However we consider the evidence we can but find that the moving party has failed to make a case. The order should be affirmed. Vanclief, 0., and Searls, 0., concurred. For the reasons given in the foregoing opinion the order appealed from is affirmed. Harrison, J., Garoutte, J., McFarland, J.