Board of Commissioners of Natrona County v. Shaffner

• Decision Date: 19 March 1902
• Citation: 68 P. 14,10 Wyo. 181
• Parties: BOARD OF COMMISSIONERS OF NATRONA COUNTY v. SHAFFNER
• Court: Wyoming Supreme Court

68 P. 14

10 Wyo. 181

BOARD OF COMMISSIONERS OF NATRONA COUNTY v. SHAFFNER

Supreme Court of Wyoming

March 19, 1902

ERROR to the District Court, Natrona County, HON. CHARLES W BRAMEL, Judge.

On motions to dismiss and quash bill of exceptions. The facts material to the motions are stated in the opinion. The motions were denied. But it was suggested that if the petition in error should not be amended within the time allowed therefor, it would be dismissed for insufficiency.

Motion to dismiss denied.

Allen G. Fisher, for defendant in error, contended, on behalf of the motions, that the record should show facts sufficient to disclose where and when the court was held, the term, name of the judge and other officers present, so that the Appellate Court may know that the proceedings were had before a court and cited the following authorities: McDonald v Peniston, 1 Neb., 324; Orr v. Orr, 2 Neb., 170; 20 Ency. L., 1st Ed., 476; Sayles v. Briggs, 4 Metc., 421; Stubbs v. State, 49 Miss. 761; Lawrence v. Fast, 20 Ill. 338; Planing Mill L Co. v. Chicago, 56 Ill. 304; McKinney v. People, 7 Ill., 552; People v. Bennet, 37 N.Y. 117; Com. v. Hogan, 113 Mass. 7; Bob v. State, 7 Humph., 129; Skinner v. Beshoar, 2 Colo., 383; Stubbins v. Evanston, 156 Ill. 338; Keller v. Brickey, 33 Ill. 496; Burlington Un. v. Stewart, 12 Ia. 442; Howell v. Ray, 83 N. C., 558; High v. Carlott, &c., R. Co., 112 N. C., 385; Baisley v. Baisley, 15 Or. 183.

No brief contra.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The defendant in error moves to quash the bill of exceptions in this case, and also to dismiss the proceedings in error. The two motions were heard at the same time.

The motion to quash the bill might be granted without material prejudice to the case, as there would seem to be no purpose to be subserved by such a document in this case, and the bill in question contains nothing but a recital of the various proceedings in the cause, all of which are shown by the record proper. It states that a motion for a new trial was filed and overruled, and an exception reserved to the ruling; but the motion itself is not incorporated in the bill.

A demurrer to the petition on three grounds, viz., that the plaintiff has no legal capacity to sue; that several causes of action are improperly joined, and that the petition does not state facts sufficient to constitute a cause of action, was overruled, and that ruling was excepted to. Afterward the defendant answered, and plaintiff filed a reply. The cause was thereupon submitted for final judgment, by stipulation of the parties, upon the petition, answer and reply; and upon those pleadings the action was determined by the rendition of the judgment now sought to be reviewed. No evidence was offered; and it is apparent that no issue of fact could have been presented under the stipulation submitting the case. The only facts which the court could possibly consider were those admitted by the pleadings, either expressly or because not denied. Under these circumstances it would seem that a bill of exceptions was not necessary to preserve any exception, or to make anything a matter of record not already a part of it, unless, possibly, the written stipulation submitting the cause; but that was not embodied in the bill. However, the judgment entry itself records the fact of such stipulated submission. Of course, if the motion for new trial was required, as a condition precedent to review in this court, it, and the exception based upon the order overruling it, could only be preserved by bill; but it is not conceived that such a motion was essential, since the trial did not involve the examination or determination of any issue of fact. (See R. S., Sec. 3746; Seibel v. Bath, 5 Wyo. 409, 40 P. 756.)

The absence of any necessity for a bill is not, however, the ground of the motion to quash. We think there is no merit in the grounds stated in the motion. One ground is that no motion for a new trial is incorporated in the bill. That fact does not constitute a good ground for quashing a bill, where such a motion is not required. Another objection urged against the bill is that its recitals are not true. Such an objection is not maintainable in this court, since a bill is to be settled in the trial court and not here. The main contention, probably, is that the bill is not properly certified, or shown to have been filed in the District Court. This objection is doubtless urged because of the failure of the District Clerk to sign the filing endorsement upon the back of the bill. The endorsement is stamped upon the back, indicating its filing February 2, 1901, but the clerk's signature is lacking. However, a certificate attached to the original papers, which are sent up pursuant to the act of 1901 (S. L., 1901, Ch. 3, Sec. 1; Supreme Court Rules 11 and 12), states that the papers "are all the papers filed in this court in the case wherein Edgar B. Shaffner is plaintiff and the Board of Commissioners, Natrona County, Wyoming, is defendant, and are named as follows," and following that statement is a list of the papers, including the "bill of exceptions." The certificate is duly signed by the clerk and bears the seal of the District Court. The purported bill appears to be signed by the judge of the court. We do not think it can be held that the bill is not properly certified, or that it appears by the record not to have been filed. The clerk treated it as filed, and certified it to have been filed, and his filing mark, but without his signature attached, appears upon it.

Notwithstanding that we do not now perceive the necessity for a bill in this case, and for that reason, as well as for the further reason that the bill in this record is nothing but a recital of record matters, it can be of no practical utility, the motion to quash must be denied, as we think none of the objections stated in the motion are well taken.

The principal contention in support of the motion to dismiss is that the record is insufficient because it does not contain a "placita." It is urged that the record should show when and where the court was held, the term, and the name of the judge and other officers present, in order that the appellate court may be properly and regularly informed from an inspection of the record itself that the proceedings complained of were had before a court.

Our statute (S. L., 1901, Ch. 3) requires that upon the filing of a petition in error, the plaintiff in error shall apply to this court for an order directing the Clerk of the District Court to transmit the original papers, or such of them as may be necessary to exhibit the errors complained of, and a transcript of the journal entries necessary to exhibit such errors. Upon filing the application, it is declared to be the duty of the clerk of this court to forthwith issue an order for such papers and transcript. In the case at bar the original papers are here duly certified as such, and they are fastened together, as required by rule 11 of this court.

The transcript of the journal entries are to be sent up separate from the papers, as required by rule 12; and they are so sent up in the case at bar. They are authenticated by the clerk, as all the journal entries in the case named in the certificate, "as the same now appears in journal number 2 of the records of this court." The certificate shows that it is made by the Clerk of the Court in and for Natrona County, and the seal of that court is affixed thereto. At the beginning of each order in the transcript there is stated, although informally, the term and date when it was made and entered; and at the end of each order, with one exception, is appended the name of the Presiding Judge of the court.

It has not been the custom in this jurisdiction to require the record to set out the convening order of the court disclosing the name of the...