(dissenting).
I regret that I must dissent.
Appellant’s notice of appeal stated that he appealed from the “judgment” entered on the “25th day of April, 1966”. The record indicates that a minute entry order for judgment was entered upon that date. In the instant case, the appellant may not appeal from the minute entry order for judgment of 25 April 1966, for two reasons.
First, a minute entry order is not an appealable order under our statute. 12-2101 A.R.S.
Second, the notice of appeal was filed 8 July 1966, more than sixty days from the 25 April 1966, order. Rule 73(b), Rules of Civil Procedure, 16 A.R.S. As a practical matter, on 8 July 1966, the only appeal-able action was the judgment of 9 May 1966.
Contrary to the majority opinion, I do not believe this is a fatal defect. The file reflects that there was one judgment from which the appellant could base his appeal, and that was the formal written judgment signed and filed on 9 May 1966. Not only may the appellant appeal from the formal written judgment of 9 May 1966, but this notice of appeal was timely filed in relation to that judgment. It does not appear that the appellee, the trial court, or this Court has been in any way misled by the notice of appeal.
A mistake in notice of appeal as .to the date of judgment appealed from is immaterial when notice is otherwise adequate. Theis v. Theis, 271 Minn. 199, 135 N.W.2d 740 (1965). As was recently stated:
“Company appealed from the order overruling its motion for new trial, a non-appealable order, but we will review the judgment on Count II on the theory that the company intended and on good faith attempted to appeal from the final judgment.” City of Joplin v. Joplin Water Works Company, 386 S.W.2d 369, 370 (Mo.1965).
And some courts treat an error in the notice of appeal as one of form rather than substance. Holmes v. Holmes, 337 Ill.App. 648, 86 N.E.2d 275 (1949).
The majority opinion cites the Arizona Corporation Commission v. Pacific Motor Trucking Company, 83 Ariz. 135, 317 P.2d 562 (1957). The facts in Arizona Corporation Commission v. Pacific Motor Trucking Company, supra, are similar to the facts in this case with one important exception. The notice of appeal given in. that case clearly stated that the appellant appealed from “that certain order made and entered * * * on the 23rd of April, 1957”. (Emphasis ours) Therein the judgment was 17 May 1957, and the notice of appeal 1 June 1957. In the instant case, the appellant in his notice of appeal states that he appeals “from the judgment *228entered * * * on the 25th day of April, 1966”. (Emphasis ours) It is clear that the appellant in the instant case did not intend to appeal from an order, but he intended to appeal from the judgment although he incorrectly designated the date of the judgment. It is interesting to note in Arizona Corporation Commission v. Pacific Motor Trucking Company, supra, that the dissent claimed that even the majority in that opinon were overly technical. As they stated:
“One of the principle purposes of the new rules of civil procedure is to dispose of cases on the merits, irrespective of technical, harmless errors. Under the federal rules, which are the same as ours on the subject, it well established that errors of the character involved herein will be ignored when the appellee has neither been misled nor harmed.” Arizona Corporation Commission v. Pacific Motor Trucking Company, supra.
In the instant case, no briefs have been filed, and the appellant attempts to make an amendment to the notice of appeal to designate not only the correct date, but to substitute the name of one of the appellees for another. The amendment to the notice of appeal was not filed within the sixty days from the judgment, and any amendment that we might allow would be an amendment to the notice itself as distinguished from the amended notice of appeal. The essential test of the sufficiency of a notice of appeal to withstand a motion to dismiss is whether adverse party was misled or prejudiced by a mistake in the notice. Greyhound corporation v. Carswell, 181 So.2d 638 (Fla.1966), on review 185 So.2d 171. The appellees having not been misled, I would grant the amendment to the notice of appeal, both as to the date of the judgment as well as to the name of the appellee.
The majority opinion also cites Associates Finance Corporation v. Scott, 3 Ariz. App. 1, 411 P.2d 174 (1966). In that case, the time for appeal based upon the date of the judgment and the twenty days within which the motion for new trial must be determined, pursuant to Rule 59(e), Rules of Civil Procedure, 16 A.R.S., was greater than the sixty days provided by Rule 73(b) of the Rules of Civil Procedure, 16 A.R.S. Under those circumstances, a notice of appeal and a bond on appeal filed more than eighty days after judgment was not timely filed.
For the reasons herein stated, I would deny the motion to dismiss, grant the motion to make an amendment to the notice of appeal to provide for the date of 9 May 1966, as the date of judgment rather than 25 April 1966. I would also consider the substitution of the party appellee. Even, however, should we deny the motion to substitute the name of one of the appellees, this would not be fatal to the appeal as to the other parties to the judgment below.