Application of Goodrich Public Service Commission of Wyoming v. Russell, 2010

• Citation: 51 Wyo. 463,68 P.2d 597
• Decision Date: 18 May 1937
• Docket Number: 2010
• Parties: APPLICATION OF GOODRICH PUBLIC SERVICE COMMISSION OF WYOMING, ET AL. v. RUSSELL
• Court: United States State Supreme Court of Wyoming

68 P.2d 597

51 Wyo. 463

APPLICATION OF GOODRICH PUBLIC SERVICE COMMISSION OF WYOMING, ET AL. v. RUSSELL

No. 2010

Supreme Court of Wyoming

May 18, 1937

APPEAL from the District Court of Laramie County; SAM M. THOMPSON Judge.

Proceeding by G. L. Goodrich to amend a motor carrier's certificate of public convenience and necessity, wherein L. J. Russell doing business under the firm name of the Russell Transportation Company, and others filed protests. From an adverse order, the Public Service Commission of Wyoming and others appeal, opposed by named protestant.

Appeal dismissed.

For the appellants, there was a brief by Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General; Wm. C. Snow Assistant Attorney General; and L. C. Sampson of Cheyenne and Harold I. Bacheller of Casper and oral arguments by Ray E Lee and L. C. Sampson.

The statute relating to this controversy is Chapter 65, Session Laws 1935 and Sections 46, 47-52 thereof. The Public Service Commission moved to dismiss the attempted appeal proceedings brought in the district court, on the ground that insufficient notice was given to all parties involved. Service must be made upon all parties. Clinton v. Elder, 40 Wyo. 350; Ellis v. Carpenter, (Ia.) 56 N.W. 678; Gage v. Lyons, (Ill.) 28 N.E. 832; Gage v. Bani, 144 U.S. 344. A statutory appeal requires a performance of all steps specified by the statute. 4 C. J. 39; Culbertson v. Ainsworth, 26 Wyo. 214; Bank v. Investment Corp., 48 Wyo. 319; Caldwell v. State, 12 Wyo. 206; Samuel v. Christensen Inc., 47 Wyo. 331; Porter v. Carstensen, 44 Wyo. 49; Jones v. Kaan, 37 Wyo. 165; Eggart v. Dunning, 15 Wyo. 487; Lobell v. Oil Co., 19 Wyo. 170; Bank v. Corp., 48 Wyo. 319; Simpson v. Ass'n., 45 Wyo. 425; In re Basin State Bank, 43 Wyo. 1; Campbell v. Weller, 25 Wyo. 65; Varnadore v. Novak, 41 Wyo. 494. The appellant having failed in service of the necessary notice upon the appellees, the district court loses jurisdiction and authority to acquire jurisdiction. County v. Bliss, 89 A. L. R. 932; In re District, 29 Wyo. 50; Spaugh v. Governor, 37 Wyo. 396; Company v. Weisflog, 30 P.2d 490.

For the respondent, there was an oral argument by Joseph Garst of Douglas, following brief filed in Case No. 2008.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal brought by the Public Service Commission of the State of Wyoming through the Attorney General, F. C. Calhoun, G. L. Goodrich and Calhoun-Goodrich Lines, Inc., a Wyoming corporation, as appellants, against L. J. Russell, doing business under the firm name of Russell Transportation Company, as respondent. Thereby a review is sought of an order made by the district court of Laramie County overruling an application made to it by said appellants to dismiss an appeal taken by the respondent above named from an order of said Public Service Commission rendered March 5, 1936, in the matter of the application of the aforesaid G. L. Goodrich to procure an amendment of a certificate of Public Convenience and Necessity previously granted the said Goodrich on April 17, 1935, by order of said Commission then made.

Russell prosecuted his appeal from this adverse order of the Public Service Commission under the provisions of Sections 47-52, inclusive, of Chapter 65, Session Laws of Wyoming, 1935. Section 47 thereof authorizes the taking of an appeal from a final order or judgment of the Commission either to the district court of Laramie County or to the district court of the county wherein appellant's principal place of business is situated. Section 48 requires the party appealing, within fifteen days after the rendition of the final order or judgment of the Commission, to file with the latter a notice of appeal, pay all accruing costs or give approved bond therefor, paying $ 5.00 to the Commission for a transcript and allowance of the appeal. By Section 49 the Commission is required, within fifteen days after the appellant has taken the steps above mentioned, to "make copies of all documents and pleadings forming the issue for the hearing before it" and to certify the same to the district court with its bills of costs. Section 50 reads verbatim:

"Upon receiving such transcript and bill of costs, the clerk of said court shall docket the same and require the appealing party to pay a docket fee of Five Dollars ($ 5.00) and shall, within five (5) days, notify all parties to the original proceedings of the docketing of such appeal."

Section 51 directs that the appellant, within thirty days after the appeal is thus docketed, shall file with the clerk aforesaid a certified transcript of the evidence submitted at the hearing before the Commission, which period may be extended an additional thirty days by the district judge for good cause shown. Section 52 provides verbatim:

"Within ten (10) days thereafter the clerk of said court shall serve on all respondents by registered mail, a notice of said appeal having been so perfected. Any party to said hearing shall have the right to be heard on appeal before said district court upon giving notice thereof within fifteen (15) days after receipt of said notice, whereupon a hearing shall be held, otherwise, to be summarily disposed of by said district court. No new evidence shall be taken at such hearing except evidence of fraud in the procurement of such final order or decision and the parties shall appear in the district court as they did before the commission."

All documents and pleadings forming the issue in the matter, together with the transcript of evidence adduced before the Commission, as required by Sections 50 and 51, appear to have been filed with the clerk of the district court of Laramie County on March 20, 1936.

On April 17, 1936, the four appellants first above named filed in the district court aforesaid a special appearance and motion to dismiss the appeal thus taken by Russell and as grounds alleged:

"1. That the Clerk of Court has failed to notify all parties to the original proceeding of the docketing of such appeal as provided in Section 50, Chapter 65, Session Laws of Wyoming, 1935.

"2. That the Clerk of said Court has failed to serve on all respondents Notice of said Appeal having been perfected as provided by section 52, Chapter 65, Session Laws of Wyoming, 1935.

"3. That said Appeal has not been perfected according to Chapter 65, Session Laws of Wyoming, 1935."

A hearing was had on this motion on May 19th following by the court, and on the 21st of that month its order was entered overruling the motion and setting the matter for hearing on the merits on June 2, 1936.

So far as can be told from the record, without leave of court had, on May 29, 1936, the appellants aforesaid filed another application designated "Plea to the Jurisdiction," requesting the court to dismiss the appeal of Russell on grounds substantially the same as those contained in their motion to dismiss, above described, with some added details designed to show the failure of the notice issued by the clerk under Sections 50 and 52, supra, to comply with the requirements of those provisions of law. This "plea" was verified positively by counsel. On June 19, 1936, after a hearing had thereon, this second application to dismiss the appeal was denied by the district court through an order made and entered on that date, wherein it was adjudged that the appeal "be not dismissed and that a hearing be had upon the merits of said appeal."

The hearing on the merits thus ordered was had before the court on the date last mentioned, and a final order then was entered upholding the decision of the Public Service Commission, from which Russell had taken his appeal. The latter at the time noted and saved his exception thereto and in due course served notice of appeal to this court therefrom, and subsequently brought the record here in case assigned No. 2007. The instant case is as described above, an appeal by the four parties first above mentioned from the order of the district court of June 19, 1936, overruling their second application to the district court to dismiss the Russell appeal from the order of the Commission.

The contentions here presented on appellants' behalf are, briefly, that the five and ten day periods prescribed by Sections 50 and 52 respectively of Chapter 65, Laws of Wyoming, 1935, supra, within which the clerk of the district court shall "notify all parties to the original proceeding of the docketing of such appeal" and "serve on all respondents by registered mail" a notice of the filing of the transcript of the evidence in his office, are mandatory; that no such notices could be served after the lapse of these periods of time; that the notices aforesaid were improperly served in this matter on account of not having been timely and properly given and also because they were sent to counsel for the parties and not to the parties themselves.

The provisions of the law of this state regulating the prosecutions of appeals from the final judgments of justice courts in civil actions to the district courts, would seem rather analogous in their requirements to some of those contained in Sections 47 to 52 of Chapter 65, supra, and as the former have received consideration in this court in several of its prior decisions, a brief survey thereof will be of assistance now.

Section 62-1201 W. R. S., 1931, authorizes an appeal to be taken from the final judgment of a justice of the peace in a civil action; Section 62-1202 W. R. S., 1931, requires the appellant to file a notice of appeal with the justice of the peace within fifteen days after rendition of the judgment sought to be questioned, to pay that official all accrued costs or give a bond therefor, and to...