{
  "id": 1559174,
  "name": "In re MONTANO'S ESTATE. MONTANO v. MONTANO",
  "name_abbreviation": "Montano v. Montano",
  "decision_date": "1934-06-11",
  "docket_number": "No. 3894",
  "first_page": "355",
  "last_page": "358",
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      "cite": "33 P.2d 906"
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    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
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    "name": "N.M."
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      "reporter": "Ohio St.",
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      "cite": "31 N. M. 430",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T22:29:00.087305+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WATSON, C. J., and SADUER, HUDSPETH, and ZINN, JJ., concur."
    ],
    "parties": [
      "In re MONTANO\u2019S ESTATE. MONTANO v. MONTANO."
    ],
    "opinions": [
      {
        "text": "BICKEEY, Justice.\nThe appellant having filed a claim against the estate of Jose Antonio Montano, deceased, and a motion to strike the same having been filed by the appellee, appellee\u2019s motion came on for hearing before the probate court on the 17th day of October, 1932.\nIt appears from the record that the probate court signed an order from which it may be assumed that the court announced its decision on the 17th day of October, 1932, but such order was not entered until the 21st day of November, 1932.\n.On the 13th day of February, 1933, a petition for the removal of the administration from the probate to the district court was filed, and the administration was removed in accordance with such petition.\nThe appellant then moved the court for a trial de novo of the issue presented by the motion to strike appellant\u2019s claim, to which request for trial de novo appellee filed her, objection on the ground that the claim of appellant had been stricken and dismissed more than 90 days previous to the filing of the petition in the district court for the removal of the administration. The district court sustained appellee\u2019s contention and denied appellant\u2019s request for a trial de novo.\nSection 34-423, Comp. St. 1929, provides: \u201c * * * And thereupon such administration shall be docketed as other causes in the district court and said court shall proceed with the administration of said estate and upon the request of any interested person shall try de novo ariy issue upon which the probate court may have rendered a decision within ninety days prior to the filing of said petition in the district court.\u201d\nThe question is, then, \u201cWhen was the decision rendered in the probate court?\u201d within the meaning of this and other statutes and rules of construction.\nAppellant contends that the decision was not rendered until the order was entered on November 21, 1932, while appellee contends that the decision was rendered on October 17, 1932, and consequently more than 90 days prior to the filing of the petition for removal.\nSection 34-104, Comp. St. 1929, provides: \u201cThe clerks of the supreme and inferior courts, and\" of the probate judges, shall seasonably record the judgments, rules, orders' and other proceedings of the respective courts and make a complete alphabetical index thereto. * * * \u201d\nSection 47-902, Comp. St. 1929, pertaining particularly to proceedings in probate courts, provides: \u201cThe county clerk shall keep a record or docket additional to the other records required by law, showing as follows: * * * Fourth. A brief minute of every step taken, or proceeding had in the course of the administration, with a reference to the volume and page of the court record where a complete record thereof may be found.\u201d\nThe first of these statutes is the same and the second not dissimilar to one considered in State v. Capital City Bank, 31 N. M. 430, 246 P. 899.\nAppellee\u2019s able and diligent counsel argues that the words \u201crendered,\u201d \u201cfiled,\u201d and \u201centered\u201d are words of well-known-signification, and that, when the Legislature employed the words \u201crendered a decision,\u201d that body did not mean \u201centered a decision.\u201d He cites many cases in which \u201crendered\u201d and \u201centered\u201d are held to be properly distinguishable terms.\nWe think the principles announced in State v. Capital City Bank, 31 N. M. 430, 246 P. 899, will control our decision in the case at bar. This court in that ease did not overlook the proposition that generally the rendition and entry of a judgment are two separate acts and different in their nature, nor that generally as between the parties to the judgment it is enforceable, although not entered. It was there held: \u201cIn determining the time within which a cost bond must be filed, an order in writing signed by the district judge, allowing an appeal, becomes effective as the judgment of the court when the same is filed with the clerk, for entry in the record, \u00e1nd not on the date of the signing of the order.\u201d\nWe quoted with approval from Smith v. Smith, 103 Ohio St. 391, 133 N. E. 792, 794, as follows: \u201cThis question has been recently before this court in Industrial Commission of Ohio v. Musselli, 102 Ohio St. 10, 130 N. E. 32. In that case it was held that tlje court speaks through its journal, and a judgment is not rendered until it is reduced to a journal entry. Slight reflection will show the necessity of this rule. Otherwise doubt and controversy would constantly arise as to what the judgment or order of the court and its date were. But in furtherance of justice an order nunc pro tunc may always be entered.\u201d\nWe now hold that, within the contemplation of section 34-423, Comp. St. 1929, a decision of an issue by the probate court is not completely and effectively rendered until jt has been entered of record.\nThe judgment of the district court is therefore reversed. The cause will be remanded for further proceedings consistent with this opinion. It is so ordered.\nWATSON, C. J., and SADUER, HUDSPETH, and ZINN, JJ., concur.",
        "type": "majority",
        "author": "BICKEEY, Justice."
      }
    ],
    "attorneys": [
      "Bradley M. Thomas, of Santa F\u00e9, for appellant.",
      "Earl D. ICenney, of Santa F\u00e9, for appellee."
    ],
    "corrections": "",
    "head_matter": "33 P.(2d) 906\nIn re MONTANO\u2019S ESTATE. MONTANO v. MONTANO.\nNo. 3894.\nSupreme Court of New Mexico.\nJune 11, 1934.\nBradley M. Thomas, of Santa F\u00e9, for appellant.\nEarl D. ICenney, of Santa F\u00e9, for appellee."
  },
  "file_name": "0355-01",
  "first_page_order": 391,
  "last_page_order": 394
}