In re Greybull Valley Irr. Dist.

Decision Date27 September 1937
Docket Number2052
Citation52 Wyo. 168,71 P.2d 801
PartiesIN RE GREYBULL VALLEY IRR. DIST.; DONOVAN, ET AL. v. OWEN, ET AL
CourtWyoming Supreme Court

APPEAL from the District Court, Big Horn County; HARRY P. ILSLEY Judge.

In the matter of the Greybull Valley Irrigation District. From an order overruling objections by Frank F. Owen and others to the court's jurisdiction to act on a report and petition filed by M. J. Donovan and others, Commissioners of the district, objectors appeal. On motion to dismiss the appeal.

Motion dismissed.

In support of the motion there was a brief and an oral argument by Ernest J. Goppert of Cody, Wyoming.

A record on appeal must contain certified copies of journal entries complained of and particularly the order from which the appeal is taken. Hahn v. Citizens' State Bank (Wyo.) 171 P. 889; Goodrich v. Big Horn County Bank (Wyo.) 174 P. 191; Scott v. Rock Products Company (Wyo.) 264 P. 86; Holliday Company v. Bundy (Wyo.) 289 P. 1094; State v. Guinn (Wyo.) 297 P. 808. An order overruling objections to jurisdiction is not a final order from which an appeal will lie to this court. C J. S. 180, 233; Jacobson v. Trust Co. (Ariz.) 234 P 563; Cone v. Hunter (Ga.App.) 142 S.E. 468; Hall v. Roehr (Ga.) 79 S.E. 379; Klopot v. Scuik (Me.) 162 A. 782; Burdick v. Mann (N. D.) 231 N.W. 545; Baird v. Lefor (N. D.) 201 N.W. 997; Sec. 89-4801, R. S. 1931; Bock v. Nefsy (Wyo.) 207 P. 1008; McInerney & Conway Finance Corp. v. Smith (Wyo.) 270 P. 664. Notice of appeal must be served within ten days after entry of the order appealed from. Sec. 89-4902, R. S. 1931; Hahn v. Bank (Wyo.) 171 P. 889; Goodrich v. Big Horn County Bank (Wyo.) 174 P. 191; Culbertson v. Ainsworth (Wyo.) 181 P. 418; Mitter v. Diamond Coal Co. (Wyo.) 191 P. 1069; Lindback v. Lackey (Wyo.) 287 P. 320; Coffee v. Harris (Wyo.) 197 P. 649; Spencer v. Loewenstein (Wyo.) 207 P. 1098; Wyoming Automotive Co. v. Weisflog (Wyo.) 30 P.2d 490; Cottier v. Sullivan (Wyo.) 31 P.2d 675; Greybull Valley Irrigation District, v. Owen (Wyo.) 52 P.2d 410.

In opposition to the motion, there was an oral argument by Milward Simpson of Cody and Lin I. Noble of Thermopolis.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This case has been heard upon a motion to dismiss, filed on behalf of the Greybull Valley Irrigation District, respondent in this action. Several grounds have been assigned as reasons for dismissal. It is sufficient to discuss one of these grounds, namely, whether or not the order overruling objections by certain objectors and appellants herein to the jurisdiction of the court is an appealable order. The facts, in brief, are these: A report was filed in the district court by the Commissioners of the Irrigation District. Thereafter, and on April 2, 1936, a motion and affidavit was filed, seeking to disqualify the Hon. P. W. Metz, Judge of the 5th Judicial District, from sitting in the case, on account of bias and prejudice. On April 8, 1936, a general order was entered by Judge Metz, assigning all cases pending in his court to Hon. H. P. Ilsley, Judge of the 7th Judicial District. Judge Ilsley heard the petition and the report of the Commissioners of the Irrigation District and made an order adjudicating the matter on May 20, 1936, the order being recorded on June 2, 1936. No appeal was taken from this order. Thereafter, and on August 19, 1936, the Commissioners of the Irrigation District filed an amended report and petition seeking to modify the order which had been made by Judge Ilsley. On August 19, 1936, Judge Metz fixed September 11, 1936, as the time for hearing the report. On September 3, 1936, the objectors again filed a motion for change of judge, and on September 22, 1936, Judge Metz made a general order assigning all cases in his court to Judge Tidball, who heard all matters involved in the amended report and petition and entered an order on October 30, 1936, confirming the report. On April 19, 1937, the Commissioners of the Irrigation District again filed a petition for a revision of the previous orders entered in the matter. On April 21, 1937, Judge Metz set the hearing on this petition for May 5, 1937. On April 27, 1937, another motion for change of judge was filed by the objectors. On May 10, 1937, Judge Metz entered a general order assigning all cases in his court to Judge Ilsley. On May 4, 1937, the objectors filed an objection to the jurisdiction of the court and an amended objection to such jurisdiction was filed on May 19, 1937. This objection to the jurisdiction was heard by Judge Ilsley on May 19, 1937, and was overruled. The reasons assigned for want of jurisdiction are that the order and judgment of Judge Ilsley of May 20, 1936, was a final order and was res judicata in the matter, and could not be modified by the judgment entered by Judge Tidball; further, that Judge Ilsley was the only judge who had jurisdiction in the matter after he had been called into the case in May, 1936, and that Judge Metz had no jurisdiction to act in the matter thereafter, either by setting the subsequent matters for hearing, assigning the amended report and petition to Judge Tidball, or assigning the petition for revision of previous orders to Judge Ilsley, as he did on May 18, 1937.

It appears to be the general rule that unless there is a special statutory provision, which does not exist in this state, an objection to the jurisdiction of the court is not an appealable order. 3 C. J. 492, 494; 4 C. J. Sec., p. 233, where it is said that:

"Nor as a rule will an appeal or writ of error lie from interlocutory orders in relation to a plea or other objection to the jurisdiction of the court."

Many authorities are cited. In the case of McInerney & Conway Finance Corp. v. Smith, 39 Wyo. 191, 270 P. 664, it appears that the case originated in the court of a justice of the...

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2 cases
  • Hashimoto v. Marathon Pipe Line Co., s. 87-120
    • United States
    • United States State Supreme Court of Wyoming
    • January 6, 1989
    ...Co., 390 P.2d 724 (Wyo.1964); Civic Ass'n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 116 P.2d 236 (1941); In re Greybull Valley Irr. Dist., 52 Wyo. 168, 71 P.2d 801 (1937); McInerney & Conway Finance Corporation v. Smith, 42 Wyo. 380, 295 P. 273 (1931); Board of Com'rs of Natrona Count......
  • State ex rel. Peterson v. District Court of Ninth Judicial Dist., 5242
    • United States
    • United States State Supreme Court of Wyoming
    • September 8, 1980
    ...which an appeal may be taken. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945); and In re Greybull Valley Irrigation District, 52 Wyo. 168, 71 P.2d 801 (1937). Currently, petitioner Peterson asks us to invoke our original jurisdiction under Article 5, Section 3, of t......

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