If the defendant has lost the right to appeal by its own laches, in failing to give the notice of appeal within the statutory time, the certiorari ought not to issue; and, on the other hand, if the notice was served in time, it is entitled to the writ in order that the case may be settled and the appeal heard.
The defendant knew on 1 July, 1913, that a judgment had been signed denying its claim; the judgment reached the office of the clerk of the Superior Court on 8 July, 1913, and the notice of appeal was served on 17 July, 1913.
If, therefore, time is to be counted against the defendant from 1st July, when it knew that judgment had been signed, it has lost the right of appeal, because notice thereof was not served within ten days; but if from 8th July, when the judgment was filed with the clerk, the defendant has complied with the statute.
When a judgment is rendered out of term, the party desiring to review it must take his appeal “within ten days after notice thereof” (Revisal, sec. 590), and within this time must cause notice of appeal to be served on the adverse party. Revisal, sec. 591.
Within ten days after notice thereof, means ten days after notice of the rendition thereof, and the determination of the question before us depends on whether a judgment out of term is rendered when it is signed or when it is filed with the clerk.
If the latter is the correct construction, the defendant had notice that a judgment had been signed on 1st July, but did not have notice of the rendition of a judgment until 8th July.
The authorities furnish us very little aid, and as either construction is permissible, we are properly influenced by our conception of the safest and most convenient rule.
Many difficulties may arise, which will create confusion and uncertainty, if we hold that a letter from the judge that he has signed a judgment is notice of its rendition. Did he write the letter? When? Did he mail it? When? Did he change the judgment after writing? Did the attorney receive the letter, and when? and other questions .which, in the event' of controversy, the judge, .whose acts are being investigated, must pass upon.
*110Again, the careful and experienced lawyer cannot decide wbat to do until be has seen and read the judgment. • He takes no man’s word as to what is in a contract, deed,'will, or judgment, but'must examine the paper before determining upon a line of action.
Judgments signed out of term áre entered as of the term, and in McDowell v. McDowell, 92 N. C., 228, it is said: “The judgment must be entered as of the term of the court at which the question to be decided or the matter to be acted upon was presented to the court, and the day of entry should be noted on the record.” And again in the same case: “"When the judgment shall be entered, the appellants, if they shall then be dissatisfied with it, may thereafter, by some appropriate proceeding, have it reviewed in this Court.”
It was also held in Harrell v. Peebles, 79 N. C., 32, that it should appear by the record when a judgment signed out of term was rendered and when recorded, and in Shackelford v. Miller, 91 N. C., 185, that the date of entering should always be noted on the record.
These cases are not authoritative upon the question before us, because .it is necessary to make the entry upon the docket for other purposes than an appeal, but they serve to show that as the clerk is required to note the date of entry on the docket, this .furnishes a definite and fixed period from which to compute the time.
That the entry on the docket is important in its relation to the appeal seems to be the opinion of the Chief Justice, who prepared the article on “Appeal and Error” in Cyc., vol. 2. He says on p. 626 : “In order that a judgment may be reviewed by an appellate court, it must be entered in permanent form as a record of the court. The entry must be intended as an entry of judgment.” And he makes the following annotation upon the text: “On the consideration of the question as to when the time allowed within which to perfect an appeal begins to run, the following rulings have been made as to when a judgment is to be considered entered:
*111 "California, — When it is ‘entered at length in the minute-book of the court.’ Matter of Pearson, 119 Cal., 27, construing Cal. Code Civ. Proc., secs. 1704, 1715.
“New York — When it is left with the clerk to be copied into the records. Gay v. Gay, 10 Paige (N. Y.), 369.
“Ohio1 — At the date of filing in accordance with a direction to counsel to prepare and file a decree on lines stated, and not at the time of such announcement and direction. S. v. Seward, 16 Ohio Cir. Ct., 443; 9 Ohio Cir. Dec., 168.
“Texas — When it is entered on the minutes of the court. New Birmingham Iron, etc., Co. v. Blevens, 12 Tex. Civ. App., 410.
“Wisconsin — When it is entered in brief on the minute-book of the clerk, though not recorded at length upon the order book. Uren v. Walsh, 57 Wis., 98, construing Wis. Kev. Stat., sec. 3042.”
We aré, therefore, of opinion that it is the wiser rale, and so hold, that the time for service of notice of appeal begins to run when the judgment reaches the office of the clerk, and that the petitioner is entitled to the writ of certiorari, as prayed for.
Petition allowed.