dissenting:
I think the complaint in this action, properly construed, presents a case materially different from that stated in the opinion of the court; but as counsel on both sides have assumed in the argument that the clerk did copy the statement and affidavit of Ginaca & Gintz, with his indorsement thereon, into the judgment-book, and did make sufficient entries in the judgment-docket, it is perhaps allowable to decide the case upon that assumption, more especially as it is probably in accordance with the actual facts outside of *246.the record. Even upon the assumption of those facts, however, I dissent from the opinion and judgment of the court.
There is no doubt that the statement and affidavit of Ginaca & Gintz were sufficient to authorize a judgment in favor of Eriend and Terry: and that the entry of judgment for the amount confessed, and the other acts to be performed by the cleric thereupon were purely ministerial. It was, nevertheless, essential, in my opinion, that they should be performed. A judgment-lien, if not the creature of the statute, is at least dependent for its acquisition upon compliance with statutory provisions, and it does not attach until the prescribed steps have been taken.
The docketing of a judgment is a purely ministerial function, yet no one would contend that an undocketed judgment constitutes a lien of itself. To my mind there is, in this respect, no difference between a failure to docket and a failure to enter a judgment; or, if there is-any difference, the failure to docket would seem to be the slighter omission of the two. The judgment is the principal thing; the. docketing is an incident. Each may be essential, but it is the judgment which lies at the foundation of the right. The docketing merely imparts constructive notice of the existence of the judgment; and it might be held, without any violation of the spirit of the statute certainly, that actual notice of its existence would dispense with the docketing.
The court, however, holds that in this case there was a substantial compliance with the statute. I do not think so. The first thing the clerk was required to do upon the filing of the statement and affidavit was to indorse thereon a “judgment” for the amount confessed, with ten dollars costs, and then to enter that judgment in the judgment-book. (Comp. Laws, sec. 1422.) The word “judgment” has a meaning as certain as the word “horse,” and the statute is explicit (Sec. 1264) that it shall specify clearly the relief granted, or other determination of the action.” Then unless the words “judgment entered April 14, a. d. 1874,” come up to this definition of a judgment—and clearly *247they do not—there was no compliance, with the first requirement of the law.
As to the entry in the judgment-book, that is, in my opinion, equally insufficient. It should have been a copy of a judgment indorsed on the statement and affidavit. Instead of that it is a copy of a statement and • affidavit themselves, and of an indorsement which is no judgment. It is true that, by reading the statement' and affidavit, we can arrive, by a process of construction, at a knowledge of what the judgment ought to have been, and so we could have done if the words ‘"judgment entered,” etc., had not been indorsed. It is no compliance with the law, however, to copy into the judgment-book, papers from which a lawyer can infer a judgment. The sentence of the law must be written out, and according to the rule quoted from Freeman by the court, it must show what relief is granted, to whom and from whom. It will not do, where a case has been tried, to make a copy of the pleadings and verdict and stop there; or, in case of a default, to’copy the complaint, summons, proof of service, and note of' the default, and stop there.
In still another essential particular the clerk failed to compty with the law. It was necessary for him to make and file a judgment-roll before docketing the judgment. He made no judgment-roll, and the materials of such a roll have never had an existence. It must consist of the statement and affidavit, “with the judgment indorsed.” (Section 1422.) But there never was any judgment indorsed on the statement, and consequently there was no roll and could’be none. In the opinion of the court it seems to be assumed that the existence of a roll was not essential; but I think otherwise. The allegations in the complaint amount to this: There is no judgment unless the words “ judgment entered,” etc., indorsed on the statement, amount to a judgment. The demurrer confesses the truth of that allegation, and the question presented is exactly the same as would arise if these papers had been offered in evidence upon an issue of nul tiel record. Upon that issue it is said the judgment-roll is the exclusively admissible evidence. "Why ? Because it is *248in the roll that the judgment exists. I know of but one case in which it has been held that evidence of the existence of a judgment is to be found outside of the judgment-roll—13 Minnesota, 46.
In several cases referred to by Freeman (section 87), it is held that the omission of the mere clerical duty of tacking together the papers comprising the judgment-roll does not invalidate the judgment, but in all of them it is said or assumed that the materials of such a roll must have had an existence. Here the objection is that something essential to the roll never did exist.
The statute seems to recognize the necessity of a judgment-roll for the purpose of creating a lien; for the clerk is directed to file the roll first and then docket the judgment. (Sections 1266, 1267.) If there is to be a lien without a roll it would certainly have been more reasonable to direct the docketing to be done before filing the roll, as an execution may be issued immediately upon the entry of judgment (Section 1272; 34 Cal. 614); for the making up of a roll is a work of time, and in the matter of priority of liens hours, and even minutes, may be of the greatest consequence.
It is no argument to say that a party ought not to be deprived of a right by the neglect of a clerk to perform his clerical duty. There is no right antecedent to a compliance with the statute. No right is taken away by a failure to comply; the party simply fails to acquire a right which he can only enjoy upon condition of compliance. It is his business to see that the clerk performs his duty, and the law affords him the means of enforcing its performance.
The respondents make several other points which amount substantially to this: that even if there was no judgment the plaintiff must fail, because it has not alleged that the sum docketed as a judgment was not deducted from the price paid by it for the land described in the complaint. In support of this proposition they cite the case of Marriner v. Smith (27 Cal. 652). But that case does not sustain them, for there it was admitted that there was a judgment against the grantor of the lands valid upon its face and duly docketed at the date of the conveyance. The grantees asked to *249have tbat judgment set aside upoiL the ground that it bad been fraudulently obtained. But the court held that that was a question exclusively between tlie grantor and the judgment-creditor; and as to the lien of the judgment they said: As tbis was a subsisting lien at tbe date of your purchase, of which you had notice, it is to be presumed that the amount of the judgment was deducted from the price paid by you for the land. Here, on tbe contrary, tbe question is whether there was a lien. If there was, there is an end of the case; if there was not, there was nothing to be considered in fixing the price of the land. There is no reason for holding that a party is bound to negative a fact wben there is no ground for presuming its existence.
The foregoing views appear to me to be. sustained by the following cases: (3 Clarke, Iowa, 480-1; 13 How. Pr. 290; 50 Ill. 13; 3 Wisc. 364-5; 20 Ala. 300.) I think the judgment should be reversed.