Board of Com'rs. of Natrona County v. Casper Nat. Bank, 2132

• Decision Date: 12 December 1939
• Docket Number: 2132,2133
• Citation: 55 Wyo. 144,96 P.2d 564
• Parties: BOARD OF COM'RS. OF NATRONA COUNTY v. CASPER NAT. BANK; SAME v. WYOMING NAT. BANK
• Court: Wyoming Supreme Court

96 P.2d 564

55 Wyo. 144

BOARD OF COM'RS. OF NATRONA COUNTY v. CASPER NAT. BANK;

SAME v. WYOMING NAT. BANK

Nos. 2132, 2133

Supreme Court of Wyoming

December 12, 1939

ERROR to the District Court, Natrona County; HARRY P. ILSLEY Judge.

Separate actions by the Board of County Commissioners of the County of Natrona against the Casper National Bank and against the Wyoming National Bank, respectively. To review judgments for defendants, plaintiff brings error. On motions to affirm the judgments or dismiss the petitions in error and proceedings instituted thereunder.

Motions denied in part and in part continued.

For the defendants in error, in support of motions, there were briefs by G. R. Hagens, R. H. Nichols, E. E. Enterline, C. M Crowell and H. B. Durham, and oral arguments by Messrs Hagens & Enterline.

It is shown by the Bill of Exceptions that it does not contain all of the evidence taken at the trial. The only assignments of error contained in the petitions in error are the overruling of the motions for a new trial. Judgments in both cases were entered on November 23, 1938, and said motions were not determined until the 27th day of January, 1939, more than sixty days after the entry of the judgments. No stipulations with respect to said motions are included in the Bill of Exceptions. Laws of Wyoming, 1935, Chapter 158. Under this statute, the motions were deemed denied on January 22, 1939, and of course, without exception. Rulings on demurrers are part of the record proper and have no place in a motion for a new trial. Sec. 81-2101, R. S. 1931. The definition of an abstract is clearly stated in Halleck v. Bresnahen, 3 Wyo. 73, and Spencer v. McMaster, 3 Wyo. 105. The following cases are cited in support of other grounds of defendants' motions, also attacking the insufficiency of the abstract: Brewer v. Folsom Bros. Co., 43 Wyo. 433; Simpson v. Occidental Bldg. & Loan Association, 45 Wyo. 425; St. Clair v. St. Clair, 46 Wyo. 446; Fryer v. Campbell, 46 Wyo. 491; Scott v. Ward, 49 Wyo. 243; Harris v. Schoonmaker, 50 Wyo. 119; Chemical Co. v. Board of Land Commissioners of Wyoming, 51 Wyo. 265. Plaintiff in error failed to comply with Rule 14 of this court with respect to its brief. Simpson v. Building & Loan Association, et al., supra., 3 Amer. Jur. 311; Houston v. Bell Tel. Co., 66 L.Ed. 961; Marshall v. Marshall, 223 P. 738; Harvey v. Stanolind Oil and Gas Company, 84 P.2d 755. Counsel for plaintiff admitted that the certificates of indebtedness in both cases were issued for a valuable consideration, pursuant to a resolution of the Board of County Commissioners, adopted June 7, 1928.

For the plaintiff in error, there were briefs and oral argument by Vincent Mulvaney of Casper.

The statute, Chapter 112, Session Laws of Wyoming, 1935, provides in general that unless a motion for a new trial is ruled upon within sixty days, it shall be denied, unless continued by order of the court or by stipulation, and makes no provision for an exception. The question arises whether such an exception is necessary or implied. An exception is an objection taken to a decision of the court upon a matter of law (Sec. 89-2001, R. S.), and must be taken at the time. Sec. 89-4701, R. S. The act of 1935 expresses no intent, nor is one implied, to abolish proceedings in error for the review of a judgment of the District Court. Statutes must have a rational interpretation. 25 R. C. L. 1077, 1078. Where a statute is susceptible of two constructions, a just and equitable interpretation is preferred. School District v. Platte County (Wyo.) 210 P. 562; Ramsay Motor Company v. Wilson (Wyo.) 30 P.2d 485; Huber v. Thomas (Wyo.) 19 P.2d 1045; 59 C. J. 970; State v. Buck Mercantile Company (Wyo.) 264 P. 1023; Mapes v. Foster (Wyo.) 266 P. 109; Allen v. Houn (Wyo.) 219 P. 573; 59 C. J. 964, 1129. It has been held that an exception to the overruling of a motion for a new trial is not necessary. State v. Railway, 30 P. 887; Yarber v. Railway Company, 85 N.E. 928; Larsen v. Long (Colo.) 214 P. 539; Vanslyck v. Pub. Co., 10 S.W.2d 1017; 4 C. J. S. 791; 3 C. J. 969. Statutes of this class are generally considered as directory rather than mandatory. Allen v. Lewis, 177 P. 433; 48 A. L. R. 361; Hudson v. Williams, 62 S.E. 1011; Cohen v. Moore, 104 S.W. 1053 and cases cited. This case was heard by a judge residing out of the district, who was not continuously available. 46 C. J. 289; Hudson v. Williams, supra. The statute should be liberally construed, so as not to deprive the plaintiff in error of the right to review, or place the arbitrary power in a district judge, by refusing or neglecting to act to prevent an appeal.

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

OPINION

RINER, Chief Justice.

These causes are before the court at this time upon the motions of the several defendants in error to affirm the judgments or dismiss the petitions in error and the proceedings instituted thereunder. The grounds of the motions being the same they will be considered together. The arguments had and briefs submitted were in large measure devoted to the proposition that this court is without jurisdiction to review the judgments rendered by the district court of Natrona County, Wyoming, and appearing in the records presented here, because, as disclosed thereby, said judgments "were entered in favor of the defendants in error in said causes, respectively, by the said District Court on the 23rd day of November, 1938, and that the motions for new trials interposed by the plaintiffs in error were not determined until the 27th day of January, 1939, more than sixty days after the entering of the judgments by the said District Court"; that the hearings on said motions for a new trial were not continued by orders of said district court or by stipulation, and that the only assignments of error made by plaintiffs in error are the overruling of the motions for a new trial. Since the jurisdiction of the court is thus drawn in question we deem it best to consider that ground of the several motions first.

The contentions of the parties regarding these matters center upon the effect to be given Chapter 112, Laws of Wyoming, 1935, entitled "An Act in regard to motions for new trials in a District Court and providing for procedure to be followed so as to avoid unnecessary delay," and reading:

"Motions for new trial shall be determined within sixty days after the rendition of judgment, and if not so determined shall be deemed denied, unless continued by order of the court, or by stipulation";

in connection with Rule 13 of this Court, as amended August 14, 1923, whose language at present is verbatim:

"Nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court in an appellate proceeding brought by the filing of a petition in error and known as a proceeding in error, unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions. The ruling of the court below upon each matter presented by a motion for a new trial shall be sufficiently questioned in this court by an assignment that the court below erred in overruling such motion for a new trial."

The amendment made in the rule in 1923 was merely the insertion of the words "in an appellate proceeding brought by the filing of a petition in error and known as a proceeding in error." This amendment was promulgated in consequence of the adoption some years before (Laws of Wyoming 1917, Chapter 32) of the additional method of review of causes by this Court, now generally known to the profession in this State as "the direct appeal" method of obtaining an appellate consideration of judgments rendered by the district courts in this jurisdiction. Prior to 1923 the rule, aside from the amendment aforesaid had stood in the language quoted for several decades as a cardinal rule of practice governing a proceeding in error. See Freeburgh v. Lamoureux, 12 Wyo. 41, 73 P. 545, and cases cited.

Defendants in error, by their motions aforesaid, insist that in view of the statute quoted above and the rule aforesaid, which as may be observed was unquestionably adopted with no thought of such a statute in mind, the plaintiff in error may not secure a review of the respective judgments involved in the instant litigation through the pending proceedings in error, and they base their position upon the following facts of record now to be recited: In the submitted bills of exceptions signed and certified as true and correct by Judge Harry P. Ilsley of the Sixth Judicial District, sitting by assignment in the stead of Judge C. D. Murane of the Seventh Judicial District, where the causes arose and were tried, the date when the several motions for new trial were filed is set forth, viz., November 29, 1938, and the motions last mentioned were, omitting titles, incorporated therein verbatim. It also appears from the same source that Judge Ilsley did not rule upon said motions for a new trial until January 27, 1939, more than sixty days after the rendition of the judgments in question, but that on that date he made orders denying said motions, to which orders plaintiff in error duly saved its exceptions. No formal orders of court or stipulations, as contemplated by the quoted statute, to secure continuances in the matter of deciding said motions for new trial beyond the sixty day period, seem to have been obtained or sought.

The difficulty arises in these causes because of the provision in the law that unless a continuance is had in the manner indicated, the motions "shall be deemed denied," and...