Marshall v. Taylor

Citations

• 97 Cal. 422
• 32 P. 515
• 1893 Cal. LEXIS 557

Syllabus

<p>Dismissal of Action — Neglect to Enter Judgment for Six Months — Payment of Costs. •—■ A motion to dismiss an action upon the ground that the plaintiff entitled to judgment has neglected for more than six month after the rendition of the verdict to demand and have the judgment entered is properly denied, where it appears that the plaintiff paid to the clerk the costs of the action immediately after the verdict, and presented him with a form of the judgment to be entered. In such case, the party asking to have the judgment entered has a right to rely upon the assumption that the clerk will make the entry, as required of of him by-section 664 of the Code of Civil Procedure.</p> <p>Id. —Notice of Non-entry of Judgment—Certificate to Transcript upon Appeal — Bill of Exceptions — Estoppel. — A certificate of the clerk to the transcript upon appeal, that no judgment had been entered upon the verdict, cannot be used as notice to charge the respondent with neglect in not having had the judgment entered until service of notice of a motion to dismiss the action; and the appellant is estopped from using it for such purpose, when the appeal is both from the judgment and from an order denying a new trial, and his bill of exceptions states that the judgment was entered immediately after rendition of the verdict, and that the judgment was introduced in evidence upon the hearing of the motion for a new trial.</p> <p>Id.—Entry of Judgment Nunc pro Tunc — Record Evidence — Delay for More than Six Months. — The pleadings, the minutes of the court, and the verdict in an action are sufficient record evidence to sustain the action of a court in ordering an entry of a judgment nunc pro tunc, although more than six months have elapsed from the rendition of the verdict.</p> <p>Id.—Judgment upon Verdict —Delay of Clerk — Neglect of Ministerial Duty. —The fact that the delay to enter the judgment upon the verdict was the delay of the clerk, and'not of the court, does not affect the right t