Bird v. State

• Decision Date: 21 December 1925
• Docket Number: 1313
• Citation: 34 Wyo. 112,241 P. 701
• Parties: BIRD v. STATE [*]
• Court: Wyoming Supreme Court

241 P. 701

34 Wyo. 112

BIRD v. STATE ^[*]

No. 1313

Supreme Court of Wyoming

December 21, 1925

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

John Bird was convicted of violation of the State Prohibition Law and he brings error. Heard on motion to strike Bill of Exceptions and dismiss proceedings in error.

Motion Overruled.

David J. Howell, Attorney General, John C. Pickett, Asst. Attorney General for the motion.

Defendant's motion for a new trial was overruled on October 13th, 1923 and 60 days allowed defendant to prepare and present a Bill of Exceptions. On February 28th, 1924, the court with the consent of the prosecuting attorney made an order vacating the order overruling motion for new trial, and May 26th 1924, defendant filed supplemental motion for new trial which with the original motion, was denied on May 29th, 1924 allowing defendant 60 days to present his Bill of Exceptions; this court is without jurisdiction to consider any matter set forth in motion for new trial, which right was lost after the expiration of 60 days from the date of overruling of the motion, and could not be restored by an order setting aside a former order overruling motion for new trial; defendant's right to appeal could not be thus restored; no showing was made as required by statute, 5864 C. S. for an extension of time for the presentation of the Bill of Exceptions before the lapse of the statutory time, and any order made thereafter was void; Coffey vs. Harris, 27 Wyo. 394; 197 P. 629; Caldwell vs. State, 12 Wyo. 206, 74 P. 496; Morgan vs. State, 26 Wyo. 212, 181 P. 498; Casteel vs. State, 9 Wyo. 267; and 4 C. J. 482; the right of appeal once lost cannot be restored by court order; Northwestern R. R. Co. vs. Dist., 29 Wyo. 50, 208 P. 872; the right of appeal cannot be restored, even by agreement; Lund vs. Johnston (Cal.), 104 P. 449; Anderson vs. Hallusen Mer. Co. (Utah), 83 P. 560; Hartzel vs. McGee (Kan.), 57 P. 502; Tootle vs. Shirey (Neb.), 72 N.W. 1044; Humphreys vs. Employer's Corp. (Mass.), 115 N.E. 253; Boshell vs. Phillips (Ala.), 93 So. 576; the supplemental motion for new trial was of no effect.

Sullivan and Garnett contra.

The court had power to set aside its order during the term at which made; 34 C. J. 207, et seq; McGinnis vs. Beatty, 28 Wyo. 328; Parrott vs. Dist. Court, 20 Wyo. 1; Kilpatrick vs. Horton, 15 Wyo. 1; Nelson vs. Meehan, 12 L. R. A. N. S. 374; Weber vs. Weber, 45 L. R. A. N. S. 875; Phillips vs. Ordway, 25 L. ed. 1040; Tyler vs. Aspinwall, 54 L. R. A. 758-764; the power is conferred by statute; 5923 C. S. Parrott vs. Court supra; Kilpatrick vs. Horton, supra; motions for new trial are to obtain a re-examination of the issues and lay the foundation for a review; in this case, the court was authorized to vacate the order and reconsider the motion; Casteel vs. State, 9 Wyo. 267; the contention that the vacation of the order to restore defendant's right of appeal, is unsupported by the record; the vacating order states that the former order was made by mistake; this brings the case within Supreme Court Rule 13; Northwestern R. R. Co. vs. Drainage Dist., 29 Wyo. 50; the case also comes within the Rule of Phillips vs. Ordway (U. S.), 25 L. ed. 1041; the order of October 13th is void since the court found that it was entered by mistake and inadvertence; the 60 day period therefore, ran upon a void order, which did not toll the statute of limitation; Mathews vs. Blake, 16 Wyo. 116.

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

OPINION

POTTER, Chief Justice.

This cause is here on error and has been heard upon a motion to strike the bill of exceptions and dismiss the proceeding in error upon the following grounds: First, that the bill of exceptions was not prepared and presented to the trial court for allowance within the time required by statute. Second, that the supplemental motion for a new trial on the ground of newly discovered evidence was not filed within the time required by statute. The error proceeding is brought for the review of a judgment and sentence upon a verdict finding the plaintiff in error guilty of a violation of the state prohibitory liquor law, and not, as alleged in the motion to strike and dismiss, of an order overruling the motion for a new trial. Such a motion is but incidental to the appeal, and may be filed for two reasons; first, to secure a vacation of the verdict and another trial of the case, and second, to lay the foundation by an exception to the overruling thereof for a review in this court of alleged errors. The original or first motion in this case alleged several errors, and was filed within the statutory period allowed therefor after the verdict, as shown by the bill of exceptions. The bill shows also that an order overruling that motion was entered on October 13, 1923; and that thereafter, during the same term, on February 28, 1924, another order was entered vacating and setting aside said order of October 13, for reasons stated in the order as follows: "Now, it appearing to the court from the statements and representations made in open court by the county and prosecuting attorney that the order heretofore entered herein overruling the motion for a new trial, heretofore filed by defendant, was entered by mistake and inadvertence, and without notice to the defendant, and without opportunity being granted to the defendant to be heard upon said motion for a new trial, and being satisfied that said order was improperly entered and the plaintiff herein consenting hereto."

Following that it was further stated therein that the previous order aforesaid "is hereby vacated, set aside and held for naught, and that said motion for a new trial be, and the same is hereby, ordered to be set down for hearing at a day certain, to be hereinafter fixed by the court." The bill further shows that thereafter, on May 26, 1924, the defendant filed what is called a supplemental motion for a new trial on the ground of newly discovered evidence. That on May 29, 1924, each of said motions, the one originally filed, and the supplemental motion, was heard, and each overruled, to which exceptions were reserved by defendant. By that order also, it was directed that the defendant shall have sixty days from the date thereof within which to prepare and present his bill of exceptions. Without that specific direction in the order, however, the defendant would by statute have had that period of time for said purpose (Comp. Stat. 1920, Sec. 5864); this court having decided that when a motion for a new trial is necessary to a consideration of any question in a proceeding in error, the statutory period for preparing and presenting a bill of exceptions shall run from the date of the overruling of such a motion. Fried v. Guiberson, 30 Wyo. 150, 217 P. 1087; Boulter v. Cook, 31 Wyo. 373, 226 P. 447; Gilpatrick v. Perry, 26 Wyo. 538, 188 P. 442.

It is contended in support of the point that the bill was not prepared and presented to the trial court for allowance within the time required by law that the extreme limit of time for such presentation would be sixty days from and after the date of the first order overruling the original motion and that the subsequent February order vacating that order must be held ineffective upon the principle that the court was without authority then to restore in that manner a lost right of appeal, citing C. & N.W. R. Co. v. Big Bend Drainage District, 29 Wyo. 50, 208 P. 872. But the...