I concur in the order denying the motion to dismiss, but my concurrence is based solely upon the grounds discussed in my dissenting opinion in Bell v. Staacke, 137 Cal. 309. Aside from those grounds, and having regard only to the decision in that case, and other similar cases in which it has been held by this court that the right of appeal depends upon the entry by the clerk of the order or judgment of which a review is sought, I cannot see how the motion of the respondent can be denied. For the evidence submitted to this court shows very *Page 696 clearly that the notice of appeal was served before the order in question was actually entered. The court, however, refuses to consider this evidence, and shuts its eyes to the fact which, according to the doctrine still adhered to, deprives us of jurisdiction. This course is justified upon the ground that the bill of exceptions contains a statement that on the twentieth day of May (which was prior to the notice of appeal) "the court made, entered, and filed an order distributing," etc., and the respondent has stipulated that the printed transcript is correct. But the stipulation of the respondent only admits that the papers in the transcript are correctly printed. It does not admit that the parties are to be bound, or that this court is to be bound, by a statement in the bill of exceptions which the superior court has no right to put in a bill of exceptions, — no right, that is to say, if it means what it is assumed to mean. According to my construction of the expression as quoted, the word "entered," as there used, has no meaning or relevancy to the point under consideration here. To say that the court "made, entered, and filed" an order does not show that the clerk had entered the order at length on the minute-book of the court. (Code Civ. Proc., sec. 1704.) What the court does is one thing, and what the clerk does is quite another. When the court has rendered its judgment, or filed its probate order, the function of the judge in that connection is ended. The duty of entering the judgment or order in the judgment-book is a merely ministerial duty devolving upon the clerk, and it is the performance of that duty by the clerk which, it is held, gives the right of appeal and constitutes the test of our jurisdiction. But how can the superior court know that the entry has been made, and, above all, how can it know when the copying was begun or completed, without taking evidence and determining its effect? To be able to say that a judgment or order was entered in the judgment-book at a certain date, the court must resort to the same evidence that is equally accessible to this court, and which this court is not only equally competent to weigh, but which, upon a question of its jurisdiction, it is exclusively competent to consider. If the entry in the judgment-book bears no date, and if, as the opinion of the court assumes, there is no provision of law for the authentication of the date of entry, then the question as to such date must be decided *Page 697 upon evidence aliunde — matter in pais — the testimony, that is to say, of the clerk or the copyist, etc. What right, then, has the superior court, in settling a bill of exceptions, to forestall the action of this court by hearing the evidence and putting its conclusions into the bill of exceptions? And what right have we to refuse to consider a question vital to our jurisdiction, because the superior court has assumed to decide it for us? It may be that upon the same evidence we would have reached a different conclusion. It may be there would be offered for our consideration other and additional evidence demanding a different conclusion.
For these reasons I am not prepared to admit that the superior court can conclude the jurisdiction of this court by a statement in the bill of exceptions that the clerk's entry of a judgment or order was made at a particular date.
Neither am I willing to admit the correctness of the statement in the opinion of the court that "the code does not seem to provide anywhere for an authentic record of the date of the entry of the judgment or order appealed from." As to judgments, at least, such provision is clearly made in section 670 of the Code of Civil Procedure, which requires the clerk, immediately after entering the judgment, to make up and file the judgment-roll. This means that he must indorse the roll as filed on a particular date, and authenticate the indorsement by his official signature. This, in the absence of other evidence, would, on the presumption that official duty has been duly performed, be authentic evidence that the judgment had been entered immediately before on the same day. This provision, it is true, does not apply to probate orders. But as to them, and indeed as to judgments, the requirement that they must be entered implies that the date of entry should be affixed to the record. This proposition is sustained by the decision in the case of Harnish v. Bramer,71 Cal. 155, which the court cites as conclusive against the position of respondent. There the court refused to hear evidence, or to consider a certificate of the county clerk that the judgment was entered in October, because the record showed that it had been entered in September. As there was no bill of exceptions in that case (see original record), it must have appeared from the judgment-roll. The truth is, it did not appear from the judgment-roll as printed in the transcript, and the statement of "the *Page 698 court" to that effect is erroneous. The only way it was made to appear was by a supplementary certificate of the clerk showing the date of the file-mark on the judgment-roll. But, disregarding this erroneous statement, Harnish v. Bramer, 71 Cal. 155, if it is authority for anything, is authority for the proposition that without a bill of exceptions the record — that is, the judgment-roll — will show the date of entry of the judgment.
To recapitulate: The statement in the bill of exceptions relates only to what was done by the court on the 20th of May. It does not pretend to state when the clerk entered the judgment, the only fact with which, under the doctrine of the court, we are at all concerned. But if the statement could be held to refer to the entry of the clerk, it is a statement which we should be obliged to disregard as an attempt by the superior court to forestall this court in the decision of a question affecting our jurisdiction, which it is not only our right, but our duty, to decide for ourselves.
There is a fact mentioned incidentally in the court's opinion which lends some support to its conclusion, though it is not made the ground of decision. It seems that this so-called bill of exceptions was not settled by order of the court, but by stipulation of the parties, and the statement that the order was entered on the 20th of May may therefore be treated as a fact stipulated, notwithstanding its improper insertion in the bill of exceptions, and as a stipulated fact it might, in the interests of justice, be liberally construed as referring to the act of the clerk, and not to the act of the court, as apparently it does. I should have been willing to acquiesce in this construction of a stipulation, and to have concurred in the view — if the court had so held — that the appellant having acted upon the stipulation, the respondent must be held to be estopped to contradict it. But I do not understand that the decision is placed upon the ground of estoppel, and in the case of Bell v.Staacke, 137 Cal. 309, although there were ample grounds of estoppel, that proposition was completely ignored.
This case furnishes another illustration of the mischiefs resulting from a false construction of the code provision as to the time for taking appeals, a construction that it would be wise to frankly abandon instead of consuming valuable *Page 699 time in the effort to discover reasons for not applying it in particular cases.