GWINN v. RYAN (1948)

The original proceedings in the trial court were based upon a motion of the defendant under sec. 581a, Code Civ.Proc., to dismiss the action because summons had not been served upon the defendant within three years after the commencement of the action. Defendant accompanied his motion by supporting affidavits. Plaintiff, in opposition, filed affidavits indicating that defendant was in the military service and stationed in various military camps in this state, and also that he was without the jurisdiction of this state during said period. The question of due diligence in attempting to serve defendant was before the court. After hearing on the motion the trial court granted it and the clerk entered in the minutes on that date (2/14/47): ‘Motion to Dismiss. Motion granted.’ No further order was made therein directing that a written order or judgment would be later prepared, signed and filed. Thereafter, on March 19, 1947, counsel for defendant presented, the judge signed, and the clerk entered a written judgment reciting that plaintiff failed to serve defendant with summons for a period of three years and that for more than three years defendant was in the State of California and did not secrete himself to prevent service of summons; that the action be dismissed and the service of summons quashed. Plaintiff filed a notice of appeal on May 15, 1947, from the ‘judgment entered * * * against plaintiff’ which date was more than 60 days after the date of the minute entry of the order granting the motion, but within the 60-day period from the date of the entry of the judgment of dismissal.

Rules 2(a) and 2(b) of the Rules on Appeal, effective July 1, 1943, governing the procedure in all appeals taken after the effective date, Rule 53(b), provide that the ‘notice of appeal shall be filed within 60 days from the date of entry of the judgment,’ and that ‘For the purposes of this rule: (1) The date of entry of a judgment shall be the date of its entry in the judgment book. (2) The date of entry of an order which is entered in the minutes shall be the date of its entry in the minutes, unless the entry in the minutes expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order. (3) The date of entry of an order which is not entered in the minutes shall be the date of filing of the order signed by the court.’ (Italics ours.)

The real question here presented, as we see it, is whether or not the minute entry constituted an effective and final judgment requiring entry in the judgment book, within the meaning of Rule 2(b)(1), or whether or not such minute entry constituted an appealable order, as distinguished from a judgment, and the entry of such order only, in the minutes, was sufficient. Section 577 of the Code of Civil Procedure clearly defines a judgment to be ‘the final determination of the rights of the parties in an action or proceeding.’

Section 1003 of the Code of Civil Procedure defines an order as ‘Every direction of a court * * * made or entered in writing, and not included in a judgment * * *.’

In Dowling v. Polack, 18 Cal. 625, it was held that a judgment of dismissal is, in effect, a final judgment in favor of the defendant, the same as if there had been an adjudication upon the merits. See, also, Associated Oil Co. v. Mullin, 110 Cal.App. 385, 294 P. 421; Leese v. Sherwood, 21 Cal. 151; Heim v. Mooney, 23 Cal.App. 233, 137 P. 616; Lincoln v. Superior Court, 22 Cal.2d 304, 310, 139 P.2d 13; 14 Cal.Jur. 854, sec. 3.

Section 664 of the Code of Civil Procedure provides that ‘In no case is a judgment effectual for any purpose until entered.’

Marks v. Keenan, 140 Cal. 33, 73 P. 751, involved about the same question as here presented, and it was there held that the entry of the order of the court in the minutes rather than in the judgment book constituted a final appealable judgment. See, also Consolidated Const. Co. v. Pacific Electric R. Co., 184 Cal. 244, 193 P. 238. However, the conclusion there reached is opposed to the reasoning and decision set forth in Egan v. McCray, 220 Cal. 546, 31 P.2d 1041, wherein it was held that where there was an order entered in the minutes only, purporting to dismiss an action, and such order was not followed by a judgment of dismissal entered in accordance with sections 664 and 668 of the Code of Civil Procedure, such judgment was not ‘effectual for any purpose until so entered.’

Section 581 of the Code of Civil Procedure provides that dismissals, for grounds therein stated, may be made by minute order. But sec. 581a, C.C.P., the section here involved, providing certain grounds for dismissal, does not contain a similar provision. The Egan case directly holds that the provisions of section 581, C.C.P., in reference thereto, is an exception to the general rule that judgments must be entered in the judgment book before they become effective as judgments and that the exception should not be extended beyond the particular case provided for by the statute. See, also, Integral Land Corporation v. Anderson, 62 Cal.App.2d 770, 145 P.2d 364; McCallum v. Stull, 59 Cal.App. 572, 211 P. 466; Ross v. O'Brien, 1 Cal.App.2d 496, 36 P.2d 1108.

The case of Pessarra v. Pessarra, 80 Cal.App.2d 965, 183 P.2d 279, relied upon by respondent, involved an order granting a motion to set aside an interlocutory and final decree of divorce. Such an order was not a final determination of the rights of the parties in the action. It was not necessary, under the statute, that such an order be entered in the judgment book to be effective. Therefore that case is distinguishable.

Section 581d, C.C.P. (New), effective 91 days after June 20, 1947, (which date was subsequent to the minute entry and filing of the notice of appeal in the present action), was adopted. It now provides that ‘All dismissals ordered by the court shall be entered upon the minutes thereof * * * and such orders when so entered shall constitute judgments and be effective for all purposes, * * *.’ (Italics ours.) Since this new section is not applicable to the present appeal, the motion to dismiss is denied.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, Justice pro tem., concur.