I dissent. It is a conceded fact in this case that at the time the appeal was taken the clerk's record showed that the judgment was entered on September 12, 1928. The notice of appeal should therefore be held to have been filed in time. When the proceedings on motion for a new trial were commenced, to wit, on November 10, 1927, and on February 6, 1929, when the notice of appeal was filed, the register of actions contained the following entry: "1928, Sept. 12, Judgment entered, Docketed and Roll filed, Judgment Book 689, page 391." It is not disputed that the judgment was copied at length in judgment-book 689, at page 391, in the form required by law. The motion of the respondents to cause the records to show that the judgment was entered on September 6, 1928, was noticed for March 4, 1929, and *Page 594 was granted on March 20, 1929, which was long after the time for taking the appeal had expired. In other words, from September 12, 1928, until March 20, 1929, the records of the Superior Court in this action showed that the judgment was entered on September 12, 1928. Until this record was amended it imported absolute verity. (Hahn v. Kelly, 34 Cal. 391 [94 Am. Dec. 742]; Bernhard v.Wall, 184 Cal. 612, 621 [194 P. 1020].) The official duties of the clerk in keeping the judgment-book and the register of actions are prescribed by sections 668 and 1052 of the Code of Civil Procedure. The presumption of regularity in the performance of those duties attached under subdivision 15 of section 1963 of the same code. This presumption and the face of the records of the clerk of the court are of paramount importance to lawyers and litigants, for they provide the test of jurisdiction of the appellate tribunal and the correctness of the record may not be disputed collaterally. (City of Los Angeles v. Glassell,203 Cal. 44, 49 [262 P. 1084].) The lawyer, the litigant, and the reviewing court are bound by such a record until it is modified or amended or impeached. The practitioner at the bar ought to be permitted to rely absolutely on such a record.
It may not be disputed that the trial court had the power to entertain and pass upon the respondents' motion to correct the record, but its order in the premises was necessarily without prejudice to the rights of these appellants who had relied on the correctness of the record in the meantime. The order of the trial court was effective either from and after its date of March 20, 1929, when it was made, in which event it did not disturb the rights of the parties already accrued under the statute, or it was in substance a nunc pro tunc order effective as of September 6, 1928. If the latter, it falls within the unvarying rule in this state that one of the functions of a nunc pro tunc order is to preserve substantial rights and is never used to impair the rights of litigants. (Osmont v. All Persons, etc.,165 Cal. 587, 592 [133 P. 480], and cases therein cited.)
The question to be decided on this motion to dismiss is one determining the appellate jurisdiction of this court. Its solution depends on the facts presented. The trial court *Page 595 could not by the entry of the order correcting the records deprive this court of its power on the present motion to determine its own appellate jurisdiction. If no such order had been entered and the motion to dismiss the appeal herein had been made on the ground that the judgment had actually been entered on September 6th and therefore the appeal was too late and the same showing were attempted to be made in this court as was made in the trial court on the motion to correct the record, I hesitate to believe that this court would do the appellants the injustice of dismissing their appeals when they had relied, in taking their appeals, on the unimpeached record of the clerk of the Superior Court. Rather would it be held, I apprehend, that, in the face of the unimpeached record, showing the entry of the judgment on September 12th, the motion to dismiss would be in the nature of a collateral attack upon the record of the trial court and would necessarily have to be denied.
Furthermore, the right of appeal in this case is conferred by the Constitution and statutes, and rules of procedure for its exercise are strictly construed in favor of the party desiring the review. (Estate of Nelson, 128 Cal. 242, 245 [60 P. 772]; 2 Lewis' Sutherland on Statutory Construction, 2d ed., sec. 545.) The opinion of the majority construes the record strictly against the right of appeal and in my opinion does an injustice to litigants who have diligently and in good faith endeavored to present their cause to this court. Lawyers and litigants are indeed in a precarious position if they may not, in determining when to file notice of appeal, rely on the prima facie correct and unimpeached record of the clerk of the Superior Court setting forth the date of the entry of a judgment.
Curtis, J., and Langdon, J., concurred.
Rehearing denied.
Shenk, J., Curtis, J., and Langdon, J., dissented. *Page 596