Tuesday, April 15, 2008

Notice of Entry and Notice of Appeal: A Boring Topic, With A Noble History

For the last 150 years, New York's courts have, for the most part, followed the same procedure for processing orders and judgments. When a judge issues an order, that order must then be "entered," i.e. filed with the county clerk. The county clerk keeps a minute book, which is essentially a ledger, and whenever anything is filed a notation is made in the book. The clerk's minutes are now usually entered twice: they are hand written and then typed into a computer system. If you go to the records room of most courthouses -- particularly older courthouses, like the Manhatten Supreme Court -- you will see clerk's minute books going back hundreds of years.

Entry is important for several reasons: judgments do not begin collecting interest until they are entered, and appeals cannot be taken from an order that was not entered. Often, there is a significant gap of time between when an order is issued and when it is entered. How long it takes depends on how quickly the judge sends the order to the county clerk, if they send it at all. Just because you were mailed a copy of the order does not necessarily mean it was entered, and in some instances the judge will leave it to the parties to enter the order with the county clerk.
It seems odd that you would receive a document from the court, but then have to re-file it with the court before it takes effect, but that is how it sometimes works.

Pursuant to C.P.L.R. 5513, to preserve an appellant's right to appeal, a notice of appeal must served and filed within thirty days after service upon the appellant of a notice of entry. In the Federal Courts and many other states, the time for noticing an appeal begins the moment an order is entered. New York State Court, however, adds the twist that a "notice of entry" must be served.

"To be effective the ‘Notice of Entry’ must strictly comply with CPLR 5513 and state exactly when and with whom the order or judgment was entered, and if it describes the judgment or order, the description must be accurate." Unique Marble & Granite Org. Corp. v. Hamil Stratten Props., LLC, 13 Misc. 3d 1239A, 831 N.Y.S.2d 357 (Queens County Sup. Ct. 2006) citing Reynolds v. Dustman, 1 N.Y.3d 559, 772 N.Y.S.2d 247 (2003)(service of an unstamped copy of the order, with a cover letter saying it had been filed with the clerk, did not constitute proper notice of entry).

Although modern litigation practice is often forgiving of minor mistakes, "strict practice must be pursued to limit the time to appeal," and thus a notice of entry must be accurate. Falker v. New York, W. S. & B. R. Co., 100 N.Y. 86, 2 N.E. 628 (1885). An incorrect date of entry is a material defect that renders a notice of entry void. Nagin v. Long Island Savings Bank, 94 A.D.2d 710, 462 N.Y.S.2d 69 (2d Dept 1983); Ping Lum v. YWCA, 136 A.D.2d 972, 525 N.Y.S.2d 82 (4th Dept. 1988).

There is, however, no formal requirement for how a notice of entry is formatted. A party can, for example, provide a stamped copy of the order and rely on the clerk's stamp to provide the material elements of "date of entry and the name of the clerk of the court where the order was entered." Norstar Bank v. Office Control Sys., 78 N.Y.2d 1110 (1991). See also Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596; 612 N.Y.S.2d 415 (2d Dept. 1994)(the absence of an index number is not a material defect in a notice of entry).

This system of entering orders and noticing entry appears to have originated in the 1840's and 1850's, when the Field Code and New York's first Code of Procedure was drafted. (Google Books has a good selection of old civil procedure treatises). At common law, there were no interlocutory appeals. After a judgment was entered, the losing party could submit a "writ of error" to the appellate court, and had the opportunity to include "appeals" regarding interim orders (such as discovery orders) only when they filed their write of error. With the enactment of the Code of Procedure in 1849, the term "appeal" was used for both final and interlocutory orders. For lawsuits that were pending in 1849, they were given two years from entry of judgment within which to file their appeal.

For new lawsuits after 1849, the parties were given "thirty days from after written notice of the judgment or order shall have been given to the party appealing." In the commetary, the drafters explain that the time for appealing does not begin to run until after the order or judgment is entered. The language was somewhat ambiguous, but there were a few early cases that clarified the practice.

The procedure today is substantially the same as it was in the nineteenth century. (See Falker, Supra). The one notable exception is that the Code's language indicates that only the successful party could serve notice of entry, not the prospective appellant. Thus, someone who won summary judgment, for example, could delay an appeal by not serving notice of entry. In his 1899 Encyclopedia of Pleadings and Practice, William McKinney suggests that the proper procedure in such a situation is to move the lower court to compel the successful party to serve notice of entry. The C.P.L.R. corrected this problem, and allows for either party to serve notice of entry.

Note: The motion that precipitated this post was: Barbera v. Summit School, 2008 NYSlipOp 71932U (2d Dept., May 14, 2008)("motion... to dismiss the appeal as untimely taken is denied on the ground that the notice of entry was defected and the entry date of the order was incomplete").  I did not want to mention the case in the original post until the motion was finally decided.

RELATED POSTS:

* How To Argue An Appeal
* New York Motion Practice

Looking for a Long Island Attorney?  Call me at 631-482-9700, or email me at Skreppein@Qhmlaw.com.  

46 comments:

  1. Dear Mr. Kreppein,

    The information above was interesting. Is Notice of Entry absolutely required? For example, in the case of a signed stipulation staying the action that has been so-ordered by a judge, is notice of entry required to give effect to the so-ordered stipulation?

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  2. No, notice of entry is not absolutely required except if you are trying to appeal or collect on a judgment (or if otherwise specified in the order). By definition, both parties already have notice of a so-ordered stipulation. If the case has already been filed, however, and the "stay" would involve the court post-poning regular conferences, then the clerk should probably be informed of the stay in some manner in order to avoid causing the court any unneeded difficulties with docket administration, and the clerk may ask that the stipulation be filed.

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    1. Do you have a CPLR section that shows the notice of entry is only required to collect on a judgment or to start clock for appeal. If there is an order entered, i.e. TRO or PI order, does it take effect upon the order date, or does it have to be served with notice of entry to take effect. What if it is served without notice of entry?

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    2. Do you think a notice of entry is required in the following situation? I filed a motion for leave to amend an answer as a respondent in a matter that included a counterclaim. The judge granted the motion and ordered that the amended pleaded is deemed to have been filed. The petitioner forgot or failed to serve an answer to the counterclaim as required. Now I want to file a motion for summary judgment. If I file a notice of entry now it will likely clue the other side to correct their oversight. (ps they did serve discovery requests quoting from the counter claim specifics). Should I file a motion for summary judgment on their oversight without having served a notice of entry of the court's order from 10 months ago? thanks.

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  3. I have know a foreclosure case where the defendant had a judgment rendered against him and the building went up for sale but a notice of entry was never filed in the docket sheet. The defendant wants to appeal the decision and get the judgment vacated but can't due so because the appealing party never entered a notice of entry of judgment. Very sloppy paperwork on this one.

    4852/2003 JP MORGAN CHASE BANK vs. GERMAINE, BARON A ETAL

    What remedies in your opinion would the defendant have. Or should I say relief to ask upon the court.

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  4. James:

    Before the building went up for sale there must have been a notice of foreclosure or some equivalent notice that a judgment had been entered. The issue is not whether notice of entry was filed in the court's docket but whether it was actually served (although, as good practice, filing the notice after service makes things much cleaner).

    I do not specialize in real estate law, so I can only offer general advice. You should consult a real estate attorney as soon as possible. If the building has not already been sold, and you have a meritorious appeal, you can make an application to the appellate division for a temporary injunction stopping the sale until the issue is decided. Once someone purchases the building in good faith, however, you will most likely not be able to get it back from them.

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  5. Hi,

    Received a NOEOJOSF (above) re foreclosure my home, dated 10.9.08. Is there anything I can do (cant afford lawyer) to delay getting kicked out? I have tried to work out a different payment plan with the banks (2 have notes on it) to no avail. We have nowhere to go yet & have a 4-year old boy.

    Thx

    Lynne

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  6. If there is a signed order, dated nearly a month ago, directing Plaintiffs to "serve a complaint within 20 days of service of this decision and order together with notice of entry" - when are the plaintiffs required to serve their complaint? The order has not been entered to date and I'm trying to figure out when they are supposed to serve the complaint (I suspect they may just not file it since there is an intervening final court order from a sister state negating the basis of their claim).

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  7. In regards to tialyne99 you can go on livinglies.wordpress.com or get a company like smartenupconsulting to write you a prose pleading as a defense. Possible defenses wasn't served properly. Affidavit of facts doesn't have a certificate of conformity and doesn't comply with 3215 (f) foreclosure commenced before plaintiff had standing etc etc. Email me at jamhunter@gmail.com

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  8. ...please where can I buy a unicorn?

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  9. If a plaintiff was awarded a default judgement, must the plaintiff have an affidavit of service of the default judgement an a notice of entry?

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    1. They would need an affodavit of servoce for proof that they served the notice (such as to start the clock for moving to vacate, or for enforcement purposes).

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    2. In this example, can you move to vacate based on the fact that the default judgment was never entered (and therefore never served on defendant)? Is there any time frame by which a notice of entry must be filed or is it indefinitely?

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    3. As a caveat, I know nothing about your case, so I cannot give you any real advice. This is just general information.

      The notice of entry is not a document that is necessarily filed, it's a notice to the other side that a judgment or order has been filed. If you have a default judgment against you, there has to have been at least an Order entered granting the default judgment. If you didn't get notice of it, then the clock hasn't begun for you to move to vacate, but the court may consider whether you unreasonably delayed in moving to vacate from the time you actually learned of the judgment (whether or not the notice was technically proper). Part of this is common sense -- you can't move to vacate the default until you're on notice of it. At the same time, to obtain a default, it had to have been shown that you were on notice of the action, and the court will generally look at whether you have a reasonable excuse for the failure to appear and a meritorious defense to the action.

      The timeframe for someone to send notice that a judgment or order was entered is, I supposed, technically indefinite. Whether a Judgment is entered against you (i.e. for the purpose of being a lien on real property), and whether you received a formal notice of entry are, however, two separate issue. A judgment is still very much a real judgment, and a real problem, regardless of whether you were served with proper notice.

      You can't move to vacate based on not being served with notice of entry. It just relates to when deadlines are calculated from. To vacate a default, in general, you should look at: C.P.L.R. 2221, C.P.L.R. 317, and C.P.L.R. 5015.

      In general, Courts prefer letting actions be decided on the merits, but also place importance on finality. The Court will look at two issues: (1) do you have excuse for the default, and (2) do you have any legitimate arguments that should be heard. The longer you wait to try to vacate a default, the less sympathetic the court will be to your application. The most common argument for vacating a default is some variation of the following: I only recently learned of the action because ________ (i.e. the prior notices went to an old address; I've been out of the country; my dog ate the summons, etc), and I should be allowed to proceed because they have a legitimate defense insofar as ________________ (i.e., I paid what was owed; I wasn't at fault for the accident; I didn't breach the contract; they're suing the wrong person, etc).

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    4. Actually, you should look at this from the Uniform Rules (though it has been interpreted to apply only in cases where the Court directs entry of a judgment)

      Section 202.48 Submission of orders, judgments and decrees for signature.
      (a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.
      (b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.
      (c)
      (1) When settlement of an order or judgment is directed by the court, a copy of the proposed order or judgment with notice of settlement, returnable at the office of the clerk of the court in which the order or judgment was granted, or before the judge if the court has so directed or if the clerk is unavailable, shall be served on all parties either:
      (i) by personal service not less than five days before the date of settlement; or
      (ii) by mail not less than 10 days before the date of settlement.
      (2) Proposed counter-orders or judgments shall be made returnable on the same date and at the same place, and shall be served on all parties by personal service, not less than two days, or by mail, not less than seven days, before the date of settlement. Any proposed counter-order or judgment shall be submitted with a copy clearly marked to delineate each proposed change to the order or judgment to which objection is made.
      Historical Note
      Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.
      Amended (c)(2) on Jun. 11, 2007

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    5. That's a different issue. Frequently, the court will issue a decision, either verbally or in writing, but not draft an order, and direct the parties to "settle order on notice." That is what 202.48 refers to.

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  10. Dear Mr. Kreppein, I was wondering if you know how long a listing of a judgement against me personally will remain on the Suffolk County Clerk's list of dockets. Is there any sort of time limit like there is on credit bureau reports? Also, would you be able to help me in having a couple of very old judgement listings cleared off my record providing, of course, that there are prescribed legal courses of action to be followed?
    Thank you very much.

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    1. In theory, they last forever. Court records are permanent. If they are paid, they change from open to satisfied. Currently, the Couty Clerk's website has a judgment search available online. As far as vacating a judgment, it can be done, but depends on the circumstances. Feel free to give me a call to discuss.

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    2. also, while the record may last indefinitely, the judgemet is only a lien on real property for 10 years unless renewed, and is presumed satisfied after 20 years.

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  11. I have a unique situation that involves NY CPLR Sec. 5519(a)(1) when a supreme court judge rendered a decision against a state agency and wrote a decision ordering them to turn over records for "in-camera" inspection by the judge, and an Affidavit from a state employee detailing what materials they provide to trainees for a specific job. The state agency filed an "AFFIRMATION OF INTENTION TO MOVE FOR PERMISSION TO APPEAL" despite the fact that the Judgment has not been "entered" yet. They state that at the time that it does become "entered" they will appeal. I guess I have a few questions. 1) Does the automatic stay for a governmental agency come into play if the judgment has not been entered?; 2) Can you file an a "AFFIRMATION OF INTENTION TO MOVE FOR PERMISSION TO APPEAL" before a judgment is "entered"?; 3) Would the "AFFIRMATION" be considered the same thing as an "Affidavit"? 4) Is there specific requirements that would be necessary to be stated in an AFFIRMATION OF INTENTION" -- like grounds or basis for the appeal?; 4) Would an ORDER directing the State to turn over records for the judges "in-camera" inspection be considered an executory directives that must be stayed automatically/ or would it be considered pre-trail that would not be stayed automaatically?

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    1. This sounds very fact specific, and I would need to know more about the case to give any real advice. Anything I put here is just general commentary. What you are describing sounds like an order, not a judgment. There is a lag between signing and entry of an order, which is likely the reason for the affirmation. An affirmation and affidavit are the same thing, but it is called an affirmation when from an attorney or doctor (whose statements are under oath without being notarized). Assuming this is a supreme court case, permission to appeal is not necessary, and they would file a notice. The affirmation was likely a stop-gap measure to let the judge know why they weren't complying. The assigned judge has substantial discretion with any discovery issue. I'm not sure what you mean by "executory directive" or "pretrial." An order for an in camera inspection is an order, and presumably a discovery order, but I do not have sufficient facts to comment further.

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  12. Is there a time frame for filing a Notice of Entry? If I have an Order in my favor from February 2010 from the Appellate Term and a Notice of Entry was never done - is it to late to do one now - over three years later?

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    1. No, but I'm not clear why you'd want to. The time for the losing party to seek leave to appeal to the appellate division hasn't technically started, but they would have a difficult time getting leave after having let it sit so long.

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  13. do i have to file a notice of entry? need help asap,please. i was awarded 50% of a 457 plan in my divorce,i filed an order to show cause against him because he wanted me to pay half of a loan he took on plan,judge ruled in my favor but ordered me to buy transcipt and settle orders on notice to his lawyer,can you tell me if what i have to file is the page on transcript with her decision ,or do i rewrite her decision as an order,with a notice of settlement and serve that to his lawyer and to court for signature ,and also a notice of entry,or a notice of entry is filed after judge signs my orders,then i send his lawyer a notice of entry of orders with judges signature?

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  14. Yolanda, you should have a lawyer do it for you. Settling an order on notice means you draft the order for the judge's signature, attach the transcript, and submit it to the judge for signature on notice to the other side. With dividing a retirement account in a matrimonial action, the order needs to be in the form of a qualified domestic relations order (qdro) for the entity to act on it.

    The proposed order must be submitted on 5 days notice, 10 if by mail. Here's a guide from the courts on how to do it. http://www.nycourts.gov/courts/6jd/forms/SRForms/orders_proced.pdf

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  15. Is a Notice of Appeal effective if no Notice of Entry has yet been filed?

    I represent the winning side in an action, and our adversary filed a Notice of Appeal without Notice of Entry.

    Will this be considered defective by the Appellate Term?

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    1. The notice of appeal and RADI form need to state the date the order was entered. If the actual original order hasn't been filed, then it might be defective, but they could just properly notice the appeal once the order is entered. A notice of entry itself is just a notice upon the other side, and doesn't need to be filed. If they filed a notice of appeal without being served with notice of entry or serving it themselves, I doubt it would render the notice of appeal defective.

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  16. Scott-- In a case that is subject to e-filing, no notice of entry was e-filed. Is that definitive proof that there was no notice of entry-- or is it possible it was served by mail. I don't recall getting it by mail (but the situation is confused by the fact that the decision itself was not e-mailed from the court until 4 months after it was dated).

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    1. It's not a document that would be filed. If you didn't receive it then you didn't receive it.

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  17. Hi. Interesting discusison.
    I just reviewed a Housing Court file, and found that there was a Request for Final Order and Decision and Judgment entered, and never served on the respondent. There was an error in the judgment. While the stipulation had a monthly charge for use and occupancy, the judgment said it was zero. Would that judgment supercede the one in the stipulation, or require the judgment to be vacated to correct it?

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    1. It depends on the terms of the stip. L&T stips can be multi-faceted, resolving past issues, addressing possession, and/or setting terms going forward. Speak to your attorney, they would have submitted the proposed judgment.

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  18. Scott, Can you tell me is there any time limit at all for a creditor to enter the judgment? I am aware that a creditor has an order from 2007 which was never entered (I just found out about this now - long story). The order states that post judgment interest will run from August 2007 (I'm certain the judge expected the creditor to enter and collect immediately in October 2007). MY concern is that he will continue to sit on it indefinitely, let's say another 10 years, enter it, then continue to sit on it (since he then has 20 years to collect) and get interest from 2007. Is there some way to get some finality here?

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  19. Scott, my judgment of divorce was stamped by the court "entered Feb. 6, 2014 Nassau County Clerk's Office". I never received a copy of the judgment from my lawyer. I found out from my ex that the judgment had been entered. I called my lawyer to inquire and he said that he never received any proposed judgment or any notice of entry. My ex's lawyer provided an affidavit of service of notice of entry but my lawyer insists he never received it. By the time I found out about this my time to appeal had passed. What is my recourse in this situation? How can I appeal the judgment now? My ex's lawyer filed the proposed judgment with the court and my lawyer never opposed it. Please let me know if there is any recourse I can take. There are several things in the judgment that should have been objected to by my lawyer and were not. I would be grateful for any suggestions you have. Thank you in advance.

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    1. Maybe. I would need more details, and this is the type of issue that cannot be easily answered in this type of forum. Call me at 631-482-9700 or send me an email at Skreppein@gmail.com.

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  20. When a judgement is entered the judgement should state within --- number of days the defendant should be served. How many days does it state typically? This is after a trial and order settlement on notice.

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    1. There is no general rule. If directed to settle on notice, the proposed judgement should be submitted within 60 days. Once signed and entered, you will want to serve promptly so as to start the appellate clock, but there's no requirement to do so unless imposed by the court. Equitable judgments (such as in matrimonial/family cases, or actions affecting title to real property) may contain service provisions directed by the court in the underlying decision.

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  21. Hello ,
    I represented myself Pro Se ( no choice extremely complicated ) I was the winning party however the Respondents attorney submitted and filed ( under an incorrect index # an approved final order in which I discovered when inquiring as to the status of my submitted order ( denied ) . My question is although I had the order amended , refiled and served I am now having to file a contempt order.
    Would it be considered " self service " considering the Respondents filed the order prepared by themselves 55 days ago as well as eliminate their right to appeal ?
    Thank you so much

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    1. Filing a proposed order, and serving notice that a copy signed by the judge has been entered (thus starting my the appeals clock) are different things

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  22. If a party sells its rights to a new party, and the party was not added to the caption of the case and the new party prevailed by a decision of the judge that the claiming party failed to prosecute, can the new party file the Notice of Entry? at this point the new party has the only standing although they were not a party to the case?

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  23. Is the party against whom the order is entered free to ignore the order until it is served on him with notice of entry? Does the order take effect on entry or upon notice of entry?

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  24. Is a party against whom an order is filed free to ignore the order until it is filed with notice of entry? Does the order take effect on entry or on notice of entry or at some other point such as knowledge? Does electronic filing have an impact on the rule?

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  25. Dear Mr. Kreppein,

    Does it matter if the plaintiff doesn't electronically file a notice of entry of an order granting plaintiff a default judgment, if the plaintiff later electronically files a notice of entry of the judgment itself?

    If the defendant would want to appeal the order, it would certainly want to appeal the judgment as well, so it would wind up as the same appeal either way, right?

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    1. Generally, an order is subsumed in the resulting judgment, so the only appeal is from the judgment

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  26. If a receivership is granted and is recorded with the Guardianship and Receievers Clerk but never filed with the County Clerks office, how does that affect my ability to appeal?

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  27. If a receivership is granted and is recorded with the Guardianship and Receievers Clerk but never filed with the County Clerks office, how does that affect my ability to appeal?

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  28. Scott, Are orders enforceable/ to be followed if the other party was never served with the copy of the order/notice of entry of such orders is not made?

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