(dissenting).
Unable to concur in the conclusion of the majority that the action of the district court in granting a new trial should be reviewed on certiorari, I note without extended discussion the grounds of my dissent.
It is well settled that under section 1651 of the Judicial Code, 28 U.S.C. § 1651, this court has jurisdiction to issue writs of certiorari, mandamus, and prohibition. These writs are issued or withheld in the sound judicial discretion of the court, and they are usually denied where another adequate remedy is available. The traditional use of the writs has been in appropriate cases to confine the district courts to the exercise of their prescribed jurisdiction, or to compel them to exert their authority when it is their duty to do so. Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Roche v. Evaporated Milk Association, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185; United States Alkali Export Association v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554. But it is not the function of the writ of certiorari to correct every error occurring in a cause in the district court. Ordinarily, if an asserted error may be corrected on appeal from a final judgment, it cannot be reviewed on certiorari even though hardship may arise out of the delay. Mere delay which causes hardship does not necessarily justify resort to certiorari as a means of review even of a jurisdictional question which is reviewable in the regular course of appeal from a final judgment. It is only in an extraordinary situation that action of the district court should be reviewed on certiorari rather than on appeal. United States Alkali Export Association v. United States, supra.
No extraordinary situation is presented which justifies review of this case on certiorari. The district court has granted' one new trial, no more. And if that action constituted error it could be reviewed and corrected on appeal from a final judgment hereafter entered following a subsequent trial. That remedy is available in such a situation and ordinarily it is adequate. Marshall’s U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140, certiorari denied 311 U.S. 667, 61 S.Ct. 26, 85 L.Ed. 428.
In connection with the granting of the new trial, the court stated in substance that under no circumstances would it permit to stand a verdict for plaintiff in excess of $15,000. But no subsequent new trial has *621been granted on the ground of excessiveness of the verdict and it cannot be forecast with certainty that in the future a verdict will be vacated and a new trial granted on such ground. In the event of another trial the verdict might be for less than $15,000, or it might be in favor of the defendant. In the event of another trial and the return of a verdict for plaintiff exceeding $15,000, the trial judge might then view differently the question of excessiveness. And in the mutation of time and events another judge might preside at a subsequent trial if one should be had. These are recognized contingencies, uncertainties, and imponderables which inhere in the situation before us. If subsequent verdicts — one after another— should be set aside on the ground of excessiveness, a different question might easily be presented. But no condition of that kind exists at the present juncture of the case. The mere granting of a single new trial on the ground of excessiveness of the verdict, •coupled with the statement of the presiding judge that under no circumstances would he allow to stand a verdict for plaintiff in excess of $15,000 is not enough to warrant review on certiorari.
On Rehearing.
In its supplemental brief in opposition •to the writ of certiorari, respondent contended that the notation on the docket of the court under date of November 3, 1950, ■did not constitute a judgment, and there ‘being no other entry, no judgment was ever formally entered and the court therefore had jurisdiction to .order a new trial on its own motion at any time. In our opinion, we treated the notation on the Clerk’s •docket under date of November 3, 1950, as the entry of the judgment of the court on •the verdict of the jury, and our conclusions with respect to the power of the court to grant a new trial on its own initiative is based on that postulate. While we are certain of our ground in that regard, inasmuch as the respondent has expressed disappointment with our failure to elaborate, and since the question is of fundamental importance, we will briefly state the basis for our decision.
Rule 58, F.R.C.P. provides in material -.part that “Unless the court otherwise directs * * *, judgment upon the verdict of a jury shall be entered forthwith by the clerk * * *. The notation of a judgment in the civil docket as provided by Rule 79 (a) constitutes the entry of the judgment; and the judgment is not effective before such entry.” Rule 79(a), F.R.C.P. provides that “ * * * The clerk shall keep a book known as ‘civil docket’ * * * ” and that “All papers * * * orders, verdicts, and judgments shall be noted chronologically in the civil docket on the folio assigned to the action and- shall be marked with its file number. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process.”
Rule VII of the Supplemental Rules of Civil Procedure of the United States District Court for the Western District of Oklahoma provides: “(b) Judgments by the clerk — In the following instances, judgments may be entered forthwith by the clerk without further direction from the judge: (1) Judgments on the verdict of a jury in the circumstances specified 'by Rule 58, Federal Rules of Civil Procedure, unless the court directs otherwise.”
In compliance with these rules, the clerk’s minutes in this case, attached as Exhibit A to the application for leave to file a writ in the nature of certiorari, briefly recite the trial proceedings leading up to the submission of the case to the-jury, and the return of the jury’s verdict in the sum of $33,-283.00, followed by the jury foreman’s name in parentheses. Then the notation significantly recites: “verdict ordered filed and jury discharged from further consideration of the case. Judgment entered on verdict and counsel for the plaintiff directed to prepare J. E. accordingly.” The “journal entry”, dated more than six months after the foregoing entry, sets out the verdict of the. jury signed by the foreman, and then recites : “Whereupon the court immediately on the 3rd day of November 1950, ordered the clerk to spread the verdict of record and enter judgment thereon, and thereafter within ten days, the defendant having filed its motion for entry of judgment in favor of the defendant, or in the alternative for a *622new trial.” And then the journal entry goes on to recite that “the verdict and judgment spread of record here on the 3rd day of November 1950 he set aside and the defendant’s motion for new trial is granted * * 5|! >>
In Lucas v. Western Casualty & Surety Co., 10 Cir., 176 F.2d 506, 507, the clerk made the following entry under date of October 25, 1948: “Enter record of trial before the Court. Counsel stipulate all facts. Judgment entered favor deft., T. M. Lucas, in sum of $383.50 for sums earned and denied as to unearned amounts. Counsel directed to exchange briefs, and further trial continued to November 15, 1948, 9:30 A.M.” On December 20, 1948, the trial court entered a written judgment, approved by the parties, reciting that the cause came on for hearing October 25, 1948, and that counsel presented a stipulation of facts to the court. The court went on to find that Lucas was entitled to $383.50, but not entitled to recover the additional $1,250.00. The judgment awarded Lucas $383.50 and costs of the action. Lucas filed a notice of appeal two days later on December 22, 1948. The appellee filed a motion to dismiss on the ground that the notice of appeal was not filed in time, the contention being that the judgment was entered on October 25, 1948. After reviewing Rules 79 and 58 and the Supplemental Rules of the District Court for the Western District of Oklahoma, we held that the entry of the judgment was not made until directed by the trial judge on December 20, 1948, because it was not the kind of a judgment to be entered by the clerk as contemplated by applicable rules; and for the further reason that the entry by the clerk in the civil docket recited that counsel was directed to file briefs and the trial was continued until November 15, 1948 “plainly showing that the court did not intend a final disposition on October 25, 1948.”
In Willoughby v. Sinclair Oil & Gas Co., 10 Cir., 188 F.2d 902, 903, the clerk’s minutes, entered July 31, 1950, recited that the motion to remand was overruled and exception allowed, and the “Plaintiff and her counsel enjoined from proceeding further in the state court.” The order signed by the court three days later recited that “the court, upon consideration, is of the opinion that an injunction against further proceedings in state court is unnecessary at this time. The order granting an injunction entered at the hearing is therefore set aside.” The appellee there contended that the order of July 31, from which the appeal was taken, was not appealable because never entered, and if so; it was set aside when the order on the motion to remand was finally signed and filed. Sustaining the finality and appealability of the order, we drew a distinction between this case and the Lucas case, on the grounds that unlike the Lucas case, the order appealed from was entered by an appropriate notation on the docket at the direction of the court, and was therefore effective as of the date of its entry on July 31, 1950.
These cases are demonstrative of the difference between the mere rendition or announcement of what a judgment will be on the one hand, and its controlling entry in the clerk’s docket on the other. See also Wilkins v. Couch, D.C., 10 F.R.D. 532. Thus, where the trial court files a memorandum of its views indicating what its judgment will be, there is no final judgment until it is formally entered by the clerk at the court’s direction. See Uhl v. Dalton, 9 Cir., 151 F.2d 502; Wright v. Gibson, 9 Cir., 128 F.2d 865.
Here, however, a formal judgment was entered on the verdict of the jury, and it was entered by the clerk in conformity with Rule 79(a), F.R.C.P., as required by Rule 58, F.R.C.P. and Rule VII of the District Court. Indeed, the parties treated the notation as the entry of judgment. The respondent filed a timely motion for new trial within ten days as required by Rule 59(b), F.R.C.P., and when the court came to grant a new trial, it specifically recited the entry of judgment on the jury verdict, and ordered the same set aside before granting a new trial. This recital removes any doubt of the intention of the court to have the clerk enter judgment on the jury verdict in accordance with applicable rules.
The petition for rehearing is denied.