Benedict v. Citizens National Bank of Casper
| Decision Date | 24 November 1931 |
| Docket Number | 1711 |
| Citation | 43 Wyo. 427,5 P.2d 277 |
| Parties | BENEDICT, ET AL. v. CITIZENS NATIONAL BANK OF CASPER |
| Court | Wyoming Supreme Court |
ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.
Heard on motion to strike bill of exceptions.
Motion denied.
In support of the motion there was a brief by E. E. Enterline and Madge Enterline, of Casper, Wyoming, and oral argument by Mr. Enterline.
The presentation and allowance of a bill of exceptions is governed by Sec. 5864 C. S. In this case the order overruling the motion for a new trial was entered on Dec. 11, 1930, and the first sixty days given by statute expired February 9 1931. In order to get sixty additional days for the presentation of a bill of exceptions, it was necessary to secure a written order not later than February 9, 1931. Brooks v. State, 29 Wyo. 114; Schmidt v Bank, 29 Wyo. 260; Roy E. Hays Co. v. Allen, 42 Wyo. 265; Jones v. Parker, 38 Wyo. 26. The order must be made while the right is still existent. 4 C. J. 282; Schlessinger v. Cook, 8 Wyo. 484; Jones v Bowman, 10 Wyo. 47; Coffee v. Harris, 27 Wyo 394. Such an order is a judicial act and must appear in the record brought to this court. Smith Drug Co. v. Casper Co., 5 Wyo. 510; International Har. Co. v. Lumber Co., 25 Wyo. 367. Judge Cromer who tried the case ceased to be judge on January 5, 1931. The order made by Judge Cromer a month after he was out of office, was void, as he had been succeeded by Judge Murane. The order apparently relied upon is one claimed to have been made on February 9, 1931 by the District Court Commrs. of Natrona County. But this order was not filed for record until August 22, 1931; it was made in the September 1930 term and recorded in the March, 1931 term. Court Commissioners are governed by provisions of our constitution and laws. Art. V, Sec. 14, Const. 1143 C. S. Laws 1929, Ch. 151. Judge Murane was one of the attorneys who represented the defendants in the lower court and for that reason could not have acted had he been present in Natrona County at the time the order was made. All orders of court commissioners must be entered at length in the journal. 1150 C. S. A District Court Commissioner may make an order extending time to prepare an appeal record. Miller v. New York Oil Co., 32 Wyo. 483; which orders must be approved by the District Court. 1151 C. S. Mau v. Stoner, 12 Wyo. 478; Miller v. Oil Co., supra. We do not complain of the allowance of the appeal by Judge Cromer after his term of office had expired, but we contend that he had no right to allow the bill without an order theretofore made and entered of record and approved as required by the provisions of our statute above cited. There is no showing made as to why this order made by the District Court Commissioner was not filed on the date it was made and then entered of record.
In opposition to the motion there was a brief by Hagens & Wehrli, of Casper, Wyoming, and oral arguments by Mr. Hagens and Mr. Wehrli.
A judge before whom a case has been tried may settle and sign a bill of exceptions after he ceases to be such judge. 5864 C. S. Laws 1923, Ch. 25. Stirling v. Wagner, 4 Wyo. 5; Gilpatrick v. Perry, 26 Wyo. 538; Chatterton v. Bonelli, 27 Wyo. 301. The court may properly settle the bill of exceptions, although the judge before whom the case was tried has died, resigned or gone out of office. Conway v. Co., 6 Wyo. 327. An order extending time for preparation and presentation of a bill of exceptions may be made by a judge before whom the case was tried after he has ceased to be a judge. Laws 1923, Ch. 25. Boulter v. Cook, 31 Wyo. 373; Hascom v. Lantry, 67 N.W. 672. A judgment is effective when made regardless of entry. Hahn v. Citizens Natl. Bank, 25 Wyo. 467; Daley v. Anderson, 7 Wyo. 1; Freeman Judgments, Vol. 1, Sec. 46, Black, Vol. 1, Sec. 106; Fried v. Guiberson, 30 Wyo. 150. An order made by a court commissioner can be made a part of the record. Allen v. Lewis, 26 Wyo. 85. A District Court does not have appellate jurisdiction of acts of its court commissioner or of its own judgments. State v. Claypool, 232 P. 351, Art. V, Sec. 10 Const. Court terms continue until determined by judicial acts, or until the next term. 15 C. J. 881; In re Dossett, 37 P. 1066; Deering Co. v. Creighton, 38 P. 710; Terr. v. Armijo, 89 P. 267; Ex parte Herrell, 110 P. 493. The statutes relating to bills of exceptions should be liberally construed. Stirling v. Wagner, 4 Wyo. 5; Conway v. Smith Co., supra; Hardin v. Card, 14 Wyo. 479.
This is a proceeding in error that has been heard on two motions--one by defendant in error to strike the bill of exceptions; the other by plaintiffs in error for the purpose of bringing into the record an order made by the District Court Commissioner.
Final judgment in the District Court was entered October 21, 1930, and motions for new trial were overruled December 11, 1930, by Judge Cromer, the judge who presided at the trial. Judge Cromer's term of office expired in January, 1931, when he was succeeded by Judge Murane. The time for presenting the bill of exceptions expired February 9, 1931, unless the time was extended. On the day last mentioned, Judge Cromer made a written order stating that the time for presenting the bill of exceptions was extended until April 1, 1931. This order recites that it was made by Judge Cromer, as "the judge before whom the * * * case was tried, and who is authorized by law to allow the bill of exceptions." The order appears in the certified copy of journal entries, and, with the motion and affidavit on which it was made, is set forth in the bill of exceptions. Within the time as thus extended, the bill was presented to and allowed by Judge Cromer.
The ground of defendant in error's motion to strike is that Judge Cromer, on February 9, after the expiration of his term of office, had no power to extend the time for presenting the bill.
In Stirling v. Wagner, 4 Wyo. 5, 31 P. 1032, 32 P. 1128, it was held that the judge who tried the case can allow a bill of exceptions after he ceases to be judge. The rule announced by that case has been neither changed by statute nor questioned by decision. A recent statute declares the same rule. Session Laws of 1923, ch. 25.
In 1917, twenty-four years after the decision of Stirling v. Wagner, the statute which provided for the giving of time to reduce exceptions to writing was amended to read as follows (Sec. 5864, C. S. 1920):
This amendment was enacted to become a part of the statutory procedure with reference to bills of exception. The legislature must be presumed to have known that in the procedure it was a settled rule that the judge before whom the case was tried was "authorized to allow the bill" after the expiration of his term of office. The amendment does not change this rule, but provides, among other things, for extensions of time also by the "judge authorized to allow the bill." The quoted words must be held to include a judge whose term of office has expired, but who, nevertheless, is authorized to allow the bill. Of course, such a judge is no longer a judge in fact, but in statutes on this subject the word is commonly used to mean a judge or ex-judge authorized to act. The statute construed in Stirling v. Wagner, supra, imposes the duty of allowing the bill on the court "or judge of the court before whom the cause was tried." C. S. 1920, § 5867.
Defendant in error does not question the validity of the statute which, as construed by this court, gave Judge Cromer authority to allow the bill. It is insisted, however, that the granting of an extension of time is a judicial act, and apparently contended that the statute of 1917, § 5864, supra, as herein construed, is invalid because it authorizes the exercise of judicial power by one who is no longer a judicial officer.
A similar contention has frequently been made in questioning the power of the trial judge to allow the bill, or to do other acts in aid of an appeal, after he ceases to be judge. It was made and considered in Stirling v. Wagner, supra. In some jurisdictions it has been held that the allowing of a bill of exceptions, or the settling of a statement on appeal is a judicial act. See, Elliott on App. Proc. § 798; Hallam v. Tillinghast, 19 Wash. 20, 52 P. 329. But under the view expressed in Stirling v. Wagner (4 Wyo. at...
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