Bales v. Brome

• Decision Date: 05 December 1938
• Docket Number: 2065
• Citation: 84 P.2d 714,53 Wyo. 370
• Parties: BALES v. BROME, ET AL
• Court: Wyoming Supreme Court

84 P.2d 714

53 Wyo. 370

BALES v. BROME, ET AL

No. 2065

Supreme Court of Wyoming

December 5, 1938

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

Action by J. W. Bales, as trustee of the Bales Oil Trust, an express trust, against Charles L. Brome and others. From an order granting a new trial, the defendants appeal. Heard on motion to dismiss.

Appeal dismissed.

For the plaintiff and respondent, on motion to dismiss, there were briefs by C. W. Axtell of Thermopolis and C. A. Zaring of Basin, Wyoming, and Horace S. Davis of Billings, Montana, and oral argument by Messrs. C. A. Zaring and Horace S. Davis.

On March 18, 1937, a judgment was awarded defendants in the above case and on March 20, 1937, plaintiff filed a motion for a new trial. On May 17, 1937, the court sustained plaintiff's motion and granted a new trial. Thereafter and on May 27, 1937, defendants filed a notice of appeal to the Supreme Court from the order granting a new trial, and thereafter filed their specifications of error. Respondent has moved to dismiss the appeal, for the reason that it is taken from the order granting plaintiff's motion for a new trial, which is not an appealable order, and this court is without jurisdiction to review the order in question. There are two methods of appeal in this state from the district court to the Supreme Court, one of which is designated as proceedings in error, and the other is a direct appeal to the Supreme Court. An order granting a new trial is not appealable. Flint v. Voiles, 50 Wyo. 43, 58 P.2d 443. Notwithstanding the ruling in the above case, appellant seeks to appeal from the order granting the motion for a new trial, by following the procedure as laid down in the direct appeal statute. They seek to evade the decisions of this court denying an appeal from an order granting a new trial by following the direct appeal statute, which permits an appeal from an order granting a new trial. The record does not show that the trial court took any action whatsoever in the matter of granting a new trial in the direct appeal proceedings. Therefore, the provisions of Chapter 89-4910 authorizing the district court to grant the appealing party a new trial, after having examined the record, cannot apply in the present case. It is our contention that any judgment or order that cannot be reviewed under Proceedings in Error cannot be reviewed under the direct appeal statutes. If instead of filing a motion for a new trial, the trial court had granted a new trial under the provisions of Section 89-4910, R. S., after having examined the perfected record on appeal, then the defendants would have had the right to appeal from such an order. The motion to dismiss should be granted.

For the defendants and appellants in resistance of motion, there were briefs by C. H. Harkins, C. R. Harkins and D. J. Harkins of Worland, and oral argument by C. H. Harkins.

Heretofore, respondent filed a motion to dismiss the appeal on the ground that the record on appeal was not filed in the Supreme Court on time. That motion was clearly without merit. The court of its own motion asked the parties to consider the question of whether or not an appeal can be taken from an order granting a new trial upon a motion for a new trial. Thereafter, respondent filed a motion to dismiss the appeal, on the ground that order granting the plaintiff's motion for a new trial is not an appealable order. Section 49-4910 of the Direct Appeal Act gives the right of appeal from an order granting a new trial, thereby removing the limitation contained in Section 89-4901, which provides, in effect, that only final orders are appealable. Our belief is that, therefore, an order granting a new trial is appealable by direct appeal. The Direct Appeal law (Sec. 89-4915) is a separate and independent method of reviewing causes in the Supreme Court, in addition to the provisions of law theretofore existing for reviewing causes by proceedings in error. We do not believe that a losing party can prevent an appeal from an order granting a new trial by proceedings in error, rather than proceedings by direct appeal. If this be so, all proceedings to set aside a judgment or final order will be by motion for a new trial, so that the opposing party may not appeal in case the motion be sustained and a new trial granted. We find no cases directly in point. We have appealed from such orders heretofore and no question has been raised, presumably because of the provision of the Direct Appeal law allowing appeals from an order granting a new trial. In respondent's motion for a new trial, he omitted defendants Joe Brady and L. J. Willis and substituted "L. J. Willis Estate." The substitution of an entirely new party deprived the court of jurisdiction to grant a new trial.

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

OPINION

RINER, Justice.

Respondent, plaintiff below, has by his motions herein filed asked that this cause be dismissed. The proceeding is one instituted to review an order of the district court of Washakie County granting him a new trial. The appellants, defendants in that court, have undertaken by their procedure to invoke the statutes of this state providing for a direct appeal to this court.

The situation presented appears to be as follows: After the issues were made up by the pleadings filed, the cause was tried to the court without a jury, and on March 20, 1937, a judgment dismissing plaintiff's petition was duly entered. Within ten days thereafter, to-wit, on March 29th, plaintiff filed his motion for a new trial, one of the steps usually taken to bring a judgment here for review through proceedings in error. This motion, by an order made May 17, 1937, entered in the court's journal on May 21 immediately following, was sustained. Relative to the order thus made appellants served upon opposing counsel and duly filed a notice of appeal on May 27, 1937. Two orders were thereafter made extending the time within which to prepare and file a record on appeal, the last of which granted an extension until and including October 15, 1937, and the record in the cause was filed on that date in the district court aforesaid. Specifications of error were thereafter filed in that court on October 25, 1937, on behalf of appellants. Thereafter this record was transmitted to this court and filed with the clerk on December 11, 1937.

January 11, 1938, respondent filed herein his motion to dismiss the cause because of alleged violation of our Rule 35, which in so far as now pertinent reads:

"In cases of direct appeal, however, from an order granting a new trial, the case shall be subject to dismissal, if the record on appeal shall not have been filed in the supreme court within sixty days after the entry of such order."

Subsequently, and on May 27, 1938, respondent filed another motion to dismiss, asserting that the order from which the appeal was attempted to be taken was not in fact an appealable one and that this court was in consequence without jurisdiction to entertain it. The cause was also briefed on the merits as well as on these motions to dismiss and arguments were submitted by counsel on both.

So far as the first motion to dismiss is concerned, it is clear that the portion of Rule 35 quoted above was intended to be applicable to cases coming here in the ordinary course of the direct appeal procedure, where a new trial is granted by the district court after the record on appeal and specifications of error have been filed there and the trial judge notified of the fact, as provided in Section 89-4910, W. R. S. 1931. In such a case no reason ordinarily exists why the record should not come promptly to this court as provided by the rule. The portion of the rule quoted above was adopted to clarify and make more definite the provisions of the law under consideration by this court in Samuelson v. Tribune Publishing Company et al., 41 Wyo. 487, 287 P. 83. That situation does not prevail in the instant case, which is, simply stated, an attempt to apply the statutes relating to direct appeal procedure to an order made under circumstances not within the purview of that kind of a proceeding. In other words, it is an attempt to bring about a review of an order granting a new trial regardless of whether made as provided by Section 89-4910, supra, or not, and thus in effect to alter and change the law relating to proceedings in error.

In the case of Flint v. Voiles, 50 Wyo. 43, 58 P.2d 443, we held, following earlier utterances made from this bench, as well as the uniform course of decisions in the State of Ohio, from which our statutes relating to the matter were taken, that an order granting a new trial on motion therefor was not a final order within the meaning of the statutes relating to procedure in error and as such not reviewable thereby. It may be, as the Supreme Court of Ohio points out in Young v. Shallenberger, 53 Ohio St. 291, 41 N.E. 518, a "ground for the reversal of the judgment" if made erroneously, such judgment being the action of the court possessing that character of finality which furnishes the basis for a proceeding in error thereon.

Under the direct appeal procedure in ordinary cases, aside, of course, from special proceedings, it is apparent that the only situation in which an order granting a new trial is to be treated as a final order, and hence immediately subject to review, is when the record on appeal and specifications of error are on file in the office of the clerk of the district court and the "judge of the district court before whom the action was tried" (Section 89-4910, supra,) has been duly notified by the clerk of that court that such is the fact, and an order granting a new trial is then made. That such order is...