on petition eor rehearing.
Potter, Chiee Justice.The motion to dismiss the appeal in this cause having been sustained (see 171 Pac. 889), the appellant has filed-a petition for rehearing. The questions involved in the motion were very carefully considered and we see no reason for a different conclusion. The appeal was dismissed on the ground that the record failed to show that a judgment had been entered in the cause, and therefore that the.notice of appeal was insufficient to give.this court jurisdiction. The *486only showing of a judgment by the record, as stated in the former opinion, was a paper purporting to have been filed July 14, 1917, entitled “Judgment,” signed by the trial judge, reciting the trial and verdict, which the record otherwise shows occurred on June 14, 1917, and concluding with a form of judgment upon the verdict, and a statement as to its date as follows: “Done in open court the 14th day of June, 1917.” But there was not a transcript or copy of the journal entry of the judgment in the record, nor anything to show that the judgment had been entered. The statute under which the appeal was taken provides for taking an appeal by serving and filing a notice thereof “within ten days from the entry of the judgment or order appealed from.” And the.notice of the appeal in this case was filed and served on June 23, 1917. We held that an entry of the judgment was essential under the statute to support an appeal.
It is now suggested by counsel for appellant that the judgment order signed by the trial judge appears to have been filed on June 13, instead of July 14, as stated in the former opinion. It bears a filing indorsement signed by the clerk with the date of filing, “July 14,” written with pen and ink. Above and partly over that date is a pencil notation, “June 13.” But we do not think the latter is to be understood as a change in the filing date. While there is nothing to show its purpose, we think it may have been intended to show the date under which the judgment was to be entered upon the journal, and that if it had been intended as a change in the date of filing such intention would have been made more clearly apparent. The paper could not have been actually or properly filed on June 13, for the case had not then been tried and was not in a condition for judgment. But it is unnecessary -to conjecture what was intended by the pencil written date. Whenever filed that paper is insufficient to show an entry of the judgment, and is not the record evidence thereof for the reasons explained in the former opinion. In addition to the statutory provisions referred to in that opinion for entering judgments *487and orders upon the journal, it is further provided by the statute that the clerk of the District Court shall keep a journal (Sec. 4273, Comp. Stat. 1910) ; that he shall “keep the journals, records, books and papers appertaining to the court, and record its proceedings” (Sec. 4278); and that “orders made out of court shall be forthwith entered by the clerk in the journal of the court, in the same manner as orders made in term.” (Sec. 4279.)
The general rule is that the record must show the rendition and entry of an appealable judgment, decree or order, so that the jurisdiction of the appellate court may appear (4 C. J. 45), and there is nothing in the so-called direct appeal statute making that rule inapplicable. On the contrary, the provision for taking an appeal by filing and serving a notice within a prescribed period from the entry of the judgment or order appealed from makes it clearly necessary that the record on appeal shall show the entry of the judgment or order, and that the notice of appeal was filed arid served within the time prescribed. It seemsj now to be argued that the statute providing for the record on appeal and designating the judgment as one of the thing's to be included in the record does not require a journal entry of the judgment or any journal entries. But the statute does require that the judgment shall be included in the record, and since the record of a judgment is the entry thereof upon the journal of the court, it is clear, we think, that it does in effect require a copy or transcript of such journal .entry. And this is made more certain, if that be possible, by the several provisions of the statute referring to the “entry” or the “date of the entry” of the order or judgment appealed from, for the purpose of fixing the time for. taking the appeal, for filing the transcript of the testimony when .re quested, and for preparing and filing the record on the appeal.
In Ohio, from which state our code of civil procedure is taken, under a statute requiring a party desiring to appeal a cause from the Court of Common Pleas to- the Circuit Court to enter on the records notice of such intention within three *488days after the judment or order is entered, it is held that the' provision means that the notice must be entered on the records within three days after the judgment or order is entered on the journal. (Layer v. Schaber, 57 O. St. 234.) And that a memorandum of the trial judge on his docket'of a notice of such intention to appeal is not a compliance with the statute because that is not an entering of the notice on the records of the court. (Moore v. Brown, 10 Ohio, 197; Bank of Circleville v. Bowsher, 15 O. C. C. 114.) The Ohio Supreme Court has also gone to the extent of holding that, in order to create a judgment lien upon lands as of the first day of the term at which a judgment is rendered, the judgment must not only be pronounced, but it must also be entered on the journal during the term. And the court say: “It is true that the two words ‘rendered’ and ‘entered,’ in their strict use, bear a clear difference in meaning and intent. Giving to these words such' signification, a judgment may be said to be ‘rendered’ by a declaration from the bench; but to enter it requires the act of the clerk in writing it upon the journal. It is true, also, that for some purposes a judgment may be regarded as rendered so soon as it is pronounced. * * * * The requirement that all judgments must be entered on the journal carries the implication that until that is.done the judgment is incohate only; it is incomplete. Though possessing the character of potentiality it lacks the character of actuality, and hence is without probative force.” (Coe v. Erb, 59 O. St. 259.)
Counsel states that since no motion for’ new trial was presented to the trial court the appellant is not in" a position to have the case reviewed ‘by proceeding in error, and, in that connection, calls our attention to Section 5135, Comp. Stat. 1910, and asks that the provisions thereof be applied here, if it is to be held that the record provided for in the direct appeal statute is not complete enough to enable a review of this case. The record provided for by that statute is certainly sufficient for the review of a case properly brought and perfected under’ it. The difficulty with this case is that the appeal is not properly brought arid perfected *489under the statute, for the reason that the record fails to disclose the entering of a judgment in the cause, or that the notice of appeal was filed and served within the prescribed period from the entry of the judgment. Section 5135 thus referred to by counsel, which is found in the code of civil procedure, provides: “If a case ever arise in which an action or proceeding for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under the code of civil procedure, the practice of the common law may be adopted, so far as it may be necessary to prevent a failure of justice.” That section is clearly not applicable, and cannot be held .to authorize the exercise of jurisdiction to pass upon the merits of this case on appeal by assuming, without a proper showing by the record, that a judgment was duly entered therein and that the appeal was properly taken and perfected. But at common law, as explained in the former opinion, a writ of error could not be brought for the review of a judgment until it had been entered of record.
It is further suggested that there is no provision in the direct appeal statute as to who shall make the entry of the judgment or order, or that prescribes the form of judgment provided for. Neither was necessary. When the statute was enacted the statutory provisions referred to in this and the former opinion were in force, requiring all judgments and orders to be entered on the journal by the clerk, and it was provided by Section 4627, Compiled Statutes of 1910, that such judgments and orders shall clearly specify the relief granted or order made. But there is attached to the petition for rehearing a certified copy of certain pages of the civil trial docket, prepared no doubt for the use of the district judge under Section 4455, Comp. Stat. 1910, on which appears to have been entered under appropriate headings, the number of the cause, the names of the attorneys and parties, respectively, the kind of action, and, under the heading, “Date of Proceedings,” “June 14,” and under the heading of “Judge’s Notes,” the following: “Jury impaneled; motion sustained as to Deft. Citizens State *490Bak, overruled as to Diers. Jdgmt. for Defts.” And it is insisted that such memoranda show or constitute the entry of a judgment in this cause. The entries of the date and proceedings may be presumed to have been made by the trial judge. But while such memoranda might be taken to show that a judgment was ordered and perhaps also the date thereof, and might authorize an entry of the judgment or, if that was neglected, an order for an entry nunc pro tunc, it cannot be taken or considered as a substitute for an entry of the judgment on the journal required by statute. The trial docket is clearly not the journal of the court, nor are the entries on such docket by the judge or clerk journal entries.
Counsel asks in this connection that the record be returned to the District Court for an'amendment so that the entries on said docket may be properly made a part of the record. Since, if contained in the record, they would not, for the reasons stated, show the entry of judgment, nothing would be gained by returning the record for the suggested amendment.' And therefore we think the request should not be granted, even if made in apt time, which we need not decide. Had application been made, at least before the motion to dismiss was decided, to return the record to the District Court for amendment or correction so as to show the entry of the judgment, accompanied by a showing that the judgment had been entered and at such time or under such conditions as to give effect-and validity to the notice' of appeal, such application, we think, might have been granted-.' This court -has been quite liberal in permitting the return- of bills of exceptions for amendment, as illustrated by several reported cases. And in two cases that was done upon application made at the time of filing a petition for rehearing, to allow the plaintiff in error an opportunity to apply in the District Court for amendments curing certain defects in the bill which had caused the dismissal of the error proceeding in one of the cases and an affirmance of the judgment in the other. And-in each case the amendment was allowed by the District Court- and upon the re*491turn of the bill as amended the case was heard' and decided upon its merits. We refer to Royal Insurance Co. v. Lumber Co., 23 Wyo. 264, 148 Pac. 340, 24 Wyo. 59, 155 Pac. 1101, and McCague Investment Co. v. Mallin, 23 Wyo. 201, 147 Pac. 507, 170 Pac. 763. Whether an application to amend a record on appeal, under the direct appeal statute, could properly be granted after an order dismissing the appeal, when made in connection with a petition for rehearing accompanied by a showing which would justify the return of the record for amendment if applied for in time, we do not decide. No such application has been made, except to amend by inserting a transcript of certain entries in the civil trial docket above mentioned, which ought not to be granted even upon timely application, for it would not show the entry of judgment. The petition for rehearing must be denied.
Beard, J., and Blydenburgh, J., concur.