I concur, generally, in the opinion of Mr. Justice McFarland, but I wish to qualify it slightly. From the language of the opinion given upon the former hearing, in connection with that this day rendered, it might be inferred that it was proper for a bill of exceptions on appeal from a judgment or order to show the date of the entry of the judgment, and that this statement could be used as evidence of the date upon a motion to dismiss the appeal. I do not think the opinions intend to sanction this proposition, and if they did I am not prepared to agree to it. The bill in question here was not settled by the judge. He was absent, and the parties stipulated that it was correct and should be used accordingly, as if it had been regularly settled. It was therefore something more than a bill of exceptions. It was a stipulation of the parties to the effect that the entry of judgment took place on a certain day. It is too late for a party to dispute the truth of this stipulation after the appeal has been taken, and upon a motion to dismiss the appeal on the ground that it was premature. The stipulation was made after the appeal was taken, and within the time when a new appeal could have been taken, if the appellant had been aware of the claim that the judgment had not been entered. It is to be presumed that the appellant relied on the stipulation, and the respondent, having remained silent until — conceding his claim as to the date of entry — the time for appeal had passed, so that, if the respondent were correct, the appellant would have lost his right, an estoppel arises against the respondent, and prevents him from now disputing the date as stated in the bill.
But I am further of the opinion that the motion to dismiss the appeal should be denied, for the reasons given in the dissenting opinion of the chief justice in Bell v. Staacke, 137 Cal. 309, to the effect that the right of appeal begins when the judgment is rendered, and before it is entered, and continues until the expiration of the time prescribed by the statute after the judgment is entered. I fully concur in all that is said in that opinion. *Page 700
The following is the opinion above referred to in the opinion of Mr. Justice McFarland, rendered in Bank on the 22d of September, 1902: —