McMillian v. Holcomb

OPALA, Justice,

concurring in result.

In reaching today’s conclusion that Der-ward Holcomb and Glenda Holcomb’s [Hol-combs or condemnees] appeal was timely brought, the court holds that the earlier of two memorials granting the landowners [con-*1040demnors]1 the relief they sought — i.e., the December 1, 1993 order2 — is not an appeal-able order because it directs the prevailing parties’ counsel “to prepare [a] Journal Entry”. The court concludes (a) that this result is mandated by the provisions of 12 O.S.Supp.1993 § 696.2(C)3 and (b) that the recordable4 nisi prius order of January 5, 1994 — denying the Holcombs’ timely-filed5 motion to reconsider (and vacate) — is to be relegated to the status of a minute. I cannot accede to the court’s analysis and characterization of the critical memorials. Because the content of both the December 1 and January 5 orders satisfies the 12 O.S.Supp. 1993 § 696.36 and 12 O.S.1991 § 247 criteria for filing and entry on the court’s journal record,8 they are both to be treated as ap-pealable, though not independently. The latter represents the appeal time trigger in this cause.

I

THE ANATOMY OF LITIGATION

The landowners (plaintiffs in the condemnation suit) were awarded the relief they sought by a nisi prius order entered on December 1, 199S.9 A second memorial of this judgment — prepared by the landowners’ counsel — was filed on December 16, 199S.

On December 13, 1993 the Holcombs (con-demnees) moved for reconsideration (and vacation) of the landowners’ judgment. The *1041Holcombs’ motion was denied by an order filed on January 5,1994. A second memorial of the motion’s denial was filed on March 1, 1994.

The Holcombs’ 'petition in error came here on February 4, 1994 — within thirty days of the January 5 order. Their amended petition was brought on March 7, 1994 — within thirty days of the March 1 order which was the second memorial of their motion’s (to reconsider and vacate) denial. Today’s pronouncement holds that (a) the second (March 1) memorial was the appeal time trigger and (b) the amended petition in error was timely to commence the Holcombs’ appeal.

I concur only in today’s denial of the appeal’s dismissal. I would declare it timely for a different reason.

II

THE SUBSTANTIVE CONTENT OF A MEMORIAL DETERMINES WHETHER IT QUALIFIES AS AN ORDER THAT TRIGGERS APPEAL TIME

The meaning and effect of an instrument depends on its substantive content.10 While both judgments and minutes11 are posted on the appearance docket,12 each has a distinct legal identity13 and is facially distinguishable from the other by its content and substance. A “minute” of a judge’s courtroom ruhng internalizes the event or proceeding by a short abstract to be posted solely on the court’s appearance docket. It is not the event’s official proof. For external use the law’s authoritative proof is provided by the “recordable”14 memorial that is on file in the ease and entered on the journal.

A

THE DECEMBER 1 ORDER

The substance of the court’s December 1, 1993 order gives the landowners the relief which they sought and is signed by the judge.15 It clearly possesses the § 24 attributes of a recordable memorial.

It is the act of filing an instrument that substantially complies with the § 696.3 criteria 16 which triggers appeal time under that *1042section’s most recent (1993) version.17 The December 1 memorial facially includes the name of the court, the parties’ designation, the case’s file number, a title [“Order”], the relief granted and the judge’s signature.18 It fully satisfies each of the § 696.3 requirements.

B

THE JANUARY 5 ORDER

On Monday, December 13, 1993 the Hol-combs moved to reconsider (and vacate) the landowners’ award. Because their motion is deemed timely (filed within the time allowed by law which was legally extended through the weekend), appeal time stood suspended until the motion’s disposition.19 On January 5, 1994 the trial court denied the Holcombs’ motion to reconsider.

Once the January 5 order was posted on the appearance docket and placed on file, it became the court clerk’s task to decide if it was recordable20 — i.e., fit for entry on the journal.21 Its text includes the document’s title [“Order”], the case’s file number, the relief granted, the trial judge’s signature and substantially designates the parties to the action. Since the January 5 order stands as external proof of the nisi prius disposition of the condemnees’ motion to reconsider (and vacate) and it substantially meets the statutory filing criteria — those of both § 696.3 and § 24 — it triggers appeal time.

Ill

APPEAL TIME’S TRIGGER IS A LAW-DRIVE MECHANISM WHICH IS BEYOND THE REACH OF HUMAN TINKERING

Effective October 1, 1993 the filing of a recordable memorial meeting the § 696.3 criteria — in this case the January 5 order— begins the 12 O.S.Supp.1993 § 990A22 thirty-day countdown for commencing an appeal.

Appeal time’s trigger is a law-driven mechanism which is beyond the reach of human tinkering.23 This court stands firmly committed to the view that, once an appealable event has occurred, a trial judge is utterly without authority to extend the statutory period by any means or in any manner, direct or oblique.24 In flagrant disregard of *1043this sine qua non principle, today’s holding gives the court’s imprimatur to a nisi prius delegation to a prívate party [the prevailing party’s counsel] of the power to extend appeal time and, worse yet, to determine ultimately when appeal time shall begin to run. Denying the legal efficacy to the trial court’s filed December 1 order — in favor of a second memorial of the identical ruling — impermis-sibly invests the winning lawyer (who was directed to prepare the later memorial) with the power to set (a) the time an “appealable” order or judgment is to be filed and hence (b) the temporal point when the appeal clock is to be triggered for the case under the terms of § 990A.25

IV

THE LEGISLATIVE POWER TO PRESCRIBE WHEN APPELLATE JURISDICTION MUST BE INVOKED CANNOT BE DELEGATED TO PRIVATE PARTIES

Because appellate jurisdiction must be invoked in the manner provided by law,26 the norms that govern computation of the appeal clock are a product of governmental power’s exercise. Our extant jurisprudence invalidates all standardless delegation of governmental power.27 The condemnation has its genesis in a rule with a constitutional dimension. It is known under the Latin maxim of delegata potestas non potest delegari28 — an extratextual gauge for measuring the conformity of official action to the constitution’s command against unlawful delegation of governmental power.

When a statute — in this case 12 O.S.Supp. 1993 § 696.329 — is susceptible of more than one meaning, the court’s duty is to give it that construction which would make its application free of infirmity and impervious to constitutional attack.30 Today’s pronouncement relegates to utter inefficacy an order which fully meets the statutory filing criteria. This is done merely because of the trial judge’s ipse dixit direction, contained in the order, that the prevailing party’s counsel prepare a second (duplicative) memorial of the same ruling. The act of empowering a party’s counsel to perform nothing more than an act of supererogation and in so doing to extend appeal time,31 operates to condemn today’s construction of § 696.3 construction as unconstitutional. The judge’s sanctioned “direction” (to prepare another memorial) usurps the legislative power to establish — to the exclusion of nisi prius judges — the appeal *1044time commencement date as a law-driven mechanism. In short, today’s opinion endorses unlawful delegation of governmental power to a private party sans warrant, standards or reason.

On the other hand, were we to hold, as I counsel today, that the first memorial of the court’s ruling is in full compliance with the terms of § 696.3,32 that critical section’s constitutional efficacy would stand preserved and become invulnerable to attack.

y

SUMMARY

The court holds that the later of two nisi prius memorials disposing of the Holcombs’ motion to reconsider (and vacate) — ie., that which sets forth the very same terms as the former — triggers this cause’s appeal time. Today’s pronouncement endorses an extra-statutory double-entry bookkeeping scheme for use by the district courts, which in turn injects unsettling uncertainty into vital trial court records.33 In its attempt to justify today’s result the court sanctions a trial judge’s standardless delegation to a party’s counsel, a private person, of the power to enlarge the statutory appeal time clock in contravention of the constitutional proscription against the unlawful delegation of governmental authority.

Appeal time runs from the filing of the first judge-signed memorialization that specifies the relief granted and otherwise substantially meets both the § 24 recordation criteria and those in § 696.3, which in this case is the January 5 entry.

This appeal is timely simply because it was brought here within 30 days of the date the January 5 order — denying new trial — was filed at nisi prius.

EXHIBIT A

IN THE DISTRICT COURT IN AND FOR TULSA COUNTY STATE OP OKLAHOMA

Roger L. McMillian and, Katy R. McMillian, husband and wife; Mark K. Vestal and Linda K. Vestal, husband and wife; Brian K. Wakley and Monica L. Wakley, husband and wife, Plaintiffs,

vs.

Derward Holcomb and Glenda Holcomb, husband and wife; John F. Cantrell, Tulsa County Treasurer; Board of Commissioners of Tulsa County, Defendants.

No. CJ-93-2946

Filed Dec. 1, 1993

ORDER

The Court finds that:

1.) The verified Petition to Condemn Easement by Necessity was filed June 30, 1993, claiming Plaintiffs were land locked.

2.) Defendants Dei-ward Holcomb and Glenda Holcomb were properly served on July 4, 1993 with summons, order and notice setting hearing.

3.) Defendants Holcomb filed an Entry of Appearance pro se July 22, 1993.

4.) A hearing was held July 23, 1993, and commissioners were appointed. Defendants Holcomb did not appear.

5.) Report of Commissioners was filed August 12, 1993. Notice was mailed to Defendants, Holcomb, August 13, 1993.

6.) Defendants Holcomb, filed an Answer and Counterclaim August 13, 1993.

7.) No objection to Report of Commissioners nor Demand for Jury Trial has been filed by Defendants.

8.) Defendants retained counsel October 18, 1993. Defendants’ attorney requested and was granted a continuance of the hearing for *1045Confirmation on Commissioners Award and Vesting Title in Plaintiffs until 11-30-93.

9.) On 11-24-93 Defendants Holcomb filed a Motion to Dismiss or in the Alternative to Consider Defendants’ Pleadings an Objection to Report of Commissioners.

The Court makes the following conclusions of law:

1.) That it is without jurisdiction to hear objections to the taking as the time for filing a written objection to Commissioners Report expired September 13, 1993, and no demand for jury trial was filed. An Answer filed in a condemnation suit is insufficient to bring to issue the question of the necessity of the taking as condemnation is a special proceeding and must be carried out in accordance with legislatively prescribed procedures. Okla. Const. Art. 2 Section 2, 66 O.S. Section 53, 55, Board of County Commissioners of Creek County v. Casteel, 522 P.2d 608.

Defendants’ motion is denied. Judgment granted in Plaintiffs confirming commissioners award and vesting title. Plaintiff attorney is directed to prepare Journal Entry,

/s/ Gail W. Harris Gail W. Harris District Judge

CERTIFICATE OF MAILING

I hereby certify that I have this 1st day of December, 1993 mailed a true and correct copy of the above decision as ordered by the court, and a true and correct copy was filed in this case.

SALLY-HOWE SMITH

COURT CLERK

/s/ Ann Ford By: Deputy Court Clerk

Charles Hanson

5918 E. 31 Street

Tulsa, Oklahoma 74135

Stephen Gray

2865 E. Skelly Dr., Ste 205

Tulsa, Oklahoma 74105

. The landowners who instituted the condemnation proceedings are Roger R. McMillian and Katy R. McMillian, Mark K. Vestal and Linda K. Vestal, and Brian H. Wakley and Monica L. Wakley.

. See exhibit "A” for the complete content of the trial court's December 1, 1993 order.

. The pertinent terms of 12 O.S.Supp.1993 § 696.2(C) provide:

“... The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including, but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order." [Emphasis mine.]

. "Recordable" means that by force of 12 O.S. 1991 § 24 an instrument meeting that section's criteria must be entered on or “recorded" in the court's journal. [For the pertinent terms of § 24, see infra note 7.] The clerk may "enter” only that which is "on file”. The § 24 concept of "on file" is distinguishable from the 12 O.S.Supp. 1993 § 696.3 concept of "filing". [For the pertinent terms of § 696.3, see infra note 6.] "On file” means that the paper is kept [according to the mandate of 12 O.S.1991 § 29] within a folder or jacket in the clerk's office. "Filing" of the instrument signifies its delivery to the clerk for entry or preservation. See Rodgers v. Higgins, Okl., 871 P.2d 398, 408-409 (1993).

. The pertinent terms of 12 O.S.Supp.1993 § 990.2 provide:

"A. Post-Trial Motions Filed Within Ten (10) Days. Where a post-trial motion ... to ... vacate or reconsider a judgment, decree or final order ... is filed within ten (10) days after the judgment, decree or final order is filed with the court clerk, an appeal shall not be commenced until an order disposing of the motion is filed with the court clerk....”

. The pertinent terms of 12 O.S.Supp.1993 § 696.3, effective October 1, 1993, are:

"A. Judgments, decrees and appealable orders that are filed with the clerk of the court shall contain:
1. A caption setting forth the name of the court, the names and designation of the parties, the file number of the case and the title of the instrument;
2. A statement of the disposition of the action, proceeding, or motion, including a statement of the relief awarded to a party or parties and the liabilities and obligations imposed on the other party or parties;
3. The signature and title of the court; ...."

. The pertinent terms of 12 O.S.1991 § 24 are:

"Upon the journal record ... shall be entered copies of the following instruments on file:
* * * * * *
2. All instruments filed in the case that bear the signature of the judge and specify clearly the relief granted or order made." [Emphasis mine.]

. The entry of orders in the journal record is vital to the functioning of our appellate process because neither the appearance docket sheets nor minute entries in a case may be accepted by a reviewing court as a proper substitute for the judge’s memorialized entry of judgment, orders, or of any proceedings occurring at nisi prius. See Elliott v. City of Guthrie, Okl., 725 P.2d 861, 863 (1986); Chamberlin v. Chamberlin, Okl., 720 P.2d 721, 723 (1986).

. In a condemnation proceeding a nisi prius decision adjudicating the question of the right to condemn is a final appealable order. Watchorn Basin Assn. v. Oklahoma Gas & Elec. Co., Okl., 525 P.2d 1357, 1359 (1974).

. Carter v. Carter, Okl., 783 P.2d 969, 970 (1989); Horizons, Inc. v. Keo Leasing Co., Okl., 681 P.2d 757, 759 (1984); Amarex, Inc. v. Baker, Okl., 655 P.2d 1040, 1043 (1983); Knell v. Burnes, Okl., 645 P.2d 471, 473 (1982); Prock v. District Court of Pittsburg County, Okl., 630 P.2d 772, 775 (1981); Harry v. Hertzler, 185 Okl. 151, 90 P.2d 656, 659 (1939); Ginn v. Knight, 106 Okl. 4, 232 P. 936, 937 (1925).

. Minutes are nothing more than abbreviated memoranda of what takes place in court. Hinshaw v. State, 47 N.E. 157, 171 (Ind.1897); State v. Larkin, 11 Nev. 314, 321 (1876); Gregory v. Frothingham, 1 Nev. 253, 260 (1865). Ordinarily the deputy clerk, present in the courtroom, is the scrivener of the minutes although the judge also is authorized to draft minutes. See 12 O.S. 1991 § 23, infra note 12.

. The documents required to be posted on the appearance docket are identified in 12 O.S.1991 § 23. Its pertinent terms are:

“On the appearance docket he [the clerk of the district court] shall enter all actions in the order in which they are brought, the date of the summons, the time of the return thereof by the officer, and his return thereon, the time of filing the petition, and all subsequent pleadings and papers, and an abstract of all judgments and orders of the coun. An abstract shall contain a very brief description of the order or judgment rendered. It must not be encumbered with a detailed recital of the terms. Proceedings other than those which culminated in an order or judgment shall not be abstracted into the appearance docket. Either the judge or the clerk may prepare an appearance docket entry in the form of a minute, or the content of the entry may be dictated either by the judge or clerk into an electronic recording device. The clerk shall transcribe onto the appearance docket all minute entries made and all the electronically-recorded abstracts.” [Emphasis added.]

. Rodgers, supra note 4 at 407-408; Hulsey v. Mid-America Preferred Ins. Co., Okl., 777 P.2d 932, 935 (1989); Miller v. Miller, Okl., 664 P.2d 1032, 1034 (1983); McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1335 n. 8 (1981); State v. Froese, 200 Okl. 486, 197 P.2d 296, 298 (1948).

. For the meaning of "recordable,” see supra note 4.

. For the § 24 criteria governing entry on the journal record, see supra note 7.

. For the § 696.3 filing requirements, see supra note 6.

. See 12 O.S.Supp.1993 § 696.2(C). Its pertinent terms state:

“The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 10 of this act [12 O.S.Supp.1993 § 696.3] and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal...." [Emphasis mine.]

. See exhibit “A” for the form and substance of the December 1 nisi prius order.

. For the effect on appeal time of timely Sled post judgment motions, see the pertinent terms of 12 O.S.Supp.1993 § 990.2, supra note 5.

. See supra note 4 for the definition of “recordable”.

. A minute of a pronounced judgment is distinguishable from its record entry. The latter is not effected by a clerk’s notation on the appearance docket. Rather, it is accomplished by a written memorial which is filed in the case and entered on the court's journal. McCullough, supra note 13 at 1335; Froese, supra note 13, 197 P.2d at 298. A minute entry lacks the effect of a judgment or order since it is not signed by the judge. Entries always control over minutes. When discordant with the former, the latter need not be vacated to clarify the court’s record. Martin v. Lib. Nat. Bank & Trust, Okl., 839 P.2d 179, 180 (1992); Elliott, supra note 8 at 863.

. The pertinent terms of 12 O.S.Supp.1993 § 990A are:

“A. An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree or appeal-able order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court...."
* * * ⅜ * *

. Manning v. State ex rel. Dept. of Public Safety, Okl., 876 P.2d 667, 671 (1994).

. See Herring v. Wiggins, 7 Okl. 312, 54 P. 483 (the court’s syllabus ¶ 1) (1898); Bellamy v. Washita Valley Telephone Co., 25 Okl. 792, 108 P. 389 (the court’s syllabus ¶ 2) (1910); Philbrock v. Home Drilling Co., 117 Okl. 266, 246 P. 457 (the *1043court’s syllabus ¶ 2) (1926); Sowers v. Archer, 161 Okl. 148, 17 P.2d 422, 423 (1932); Starr v. Woods, 162 Okl. 242, 19 P.2d 561, 562 (1933); Watchorn v. General Finance & Sales Co., 162 Okl. 203, 19 P.2d 566 (the court’s syllabus ¶ 2) (1933); Manos v. Leche, 205 Okl. 213, 236 P.2d 693, 695 (1951); Salyer v. National Trailer Convoy, Inc., Okl., 727 P.2d 1361, 1362 n. 2 (1986); Grant Square Bank & Trust Co. v. Werner, Okl., 782 P.2d 109, 111 n. 4 (1989).

. For the pertinent terms of § 990A, see supra note 22.

. Okl. Const., art. VII § 4, provides in pertinent part:

"* * * The appellate and the original jurisdiction of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law." [Emphasis mine.]

. Oklahoma City v. State ex rel. Dept. of Labor, Okl., - P.2d - (1995) (No. 85,888, October 14, 1995, 66 OBJ 3184, 3187); Democratic Party of Oklahoma v. Estep, Okl., 652 P.2d 271, 277 n. 23 (1982); American Home Products Corporation v. Hornsey, Okl., 361 P.2d 297, 301 (1961); Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977, 982 (1938).

. This maxim means that "delegated authority cannot be re-delegated”. See Warner v. Martin, 11 How. 209, 223, 13 L.Ed. 667 (U.S. 1850).

. For the pertinent terms of § 696.3, see supra note 6.

. Earl v. Tulsa County Dist. Court, Okl., 606 P.2d 545, 548 (1980); Wilson v. Foster, Okl., 595 P.2d 1329, 1333 (1979); Neumann v. Tax Commission, Okl., 596 P.2d 530, 532 (1979).

. A judgment issues from the court and not from the attorneys or the court clerk. A trial judge has the duly to draft, sign and record a judgment with a reasonable time after its rendition or pronouncement. Manning, supra note 23 at 671.

. For the pertinent terms of 12 O.S.Supp.1993 § 696.3, see supra note 6.

. For a discussion of the nature of the confusion which double-entry bookkeeping creates, see Mansell v. City of Lawton, Okl., 877 P.2d 1120, 1121 (1994) (Opala, J., concurring.).