Bosick v. Owl Creek Coal Co., 1892

CourtUnited States State Supreme Court of Wyoming
Citation41 P.2d 533,48 Wyo. 46
Docket Number1892
PartiesBOSICK v. OWL CREEK COAL COMPANY
Decision Date18 February 1935

ERROR to the District Court, Hot Springs County; E. H. FOURT Judge.

Proceedings by Mary (Bika) Bosick under the Workmen's Compensation Law, contested by Owl Creek Coal Company, employer. From an order and judgment that claimant take nothing, she brings error. Heard on motion to dismiss and upon the merits subject to the disposition of the motion.

Motion dismissed.

For defendant in error, and in support of motion to dismiss there was a brief and oral argument by C. W. Axtell, of Thermopolis.

The bill of exceptions and record on appeal were not filed within 70 days after the order was made denying motion for new trial, or within any extended time granted after expiration of the original seventy day period. Section 124-114, R. S. The order overruling the motion for new trial was not excepted to and is not reviewable. Bader v. Mills, 28 Wyo. 191; Bank v. Sorenson, 30 Wyo. 136; Insurance Company v. Auto Club, 36 Wyo. 540. The appeal was never perfected. Coffee v. Harris, 27 Wyo. 394; Auto Co. v. Hamilton, 29 Wyo. 109; Thomas v. Bivin, 32 Wyo. 478. The court had no jurisdiction to make the order of July 6, 1934. Marsh v Aljoe, 43 Wyo. 345. The statutory provisions are mandatory. Reintsma v. Oil Company, 37 Wyo. 471; Lion Company v. Contas, 42 Wyo. 59; Section 129-114 R. S. 1931.

For plaintiff in error and in resistance of the motion to dismiss, there was an oral argument by H. S. Harnsberger.

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

OPINION

RINER, Justice.

This cause is before the court by proceeding in error and was heard upon a motion to dismiss, and also upon the merits subject to the disposition of that motion.

Upon the conclusion of the trial of the case which involved a disputed claim, under the workmen's compensation law of this State, in Hot Springs County, the employer requested the court to make special findings of fact, and conclusions of law. Over a year later, a similar request was tendered by the claimant. Subsequently and on June 1, 1932, the amended special findings and conclusions of law of the court were made upon which there was entered a judgment that the claimant take nothing. The same day claimant filed her motion for a new trial, incorporating therein several of the statutory grounds therefor.

Thereafter, by an order dated March 13, 1934, and filed the following day, the district court overruled the motion aforesaid. Pursuant to an application made by the claimant and filed May 11th, 1934, the court by an order both dated and filed that day, extended the time within which "to prepare and file her exceptions in writing to the decision heretofore rendered in said cause," to and including July 10th, 1934.

On May 11th, 1934, also, claimant filed a second motion for a new trial, on the ground that the official court reporter "has failed to furnish this claimant with a complete transcript of the evidence" and that said reporter has advised claimant that "she will be unable to prepare and furnish a complete transcript of evidence in said cause, due to the fact that part of the testimony and evidence adduced at the trial of said cause has been lost or destroyed, and there is no record from which the same may be reproduced." This motion was by the court disposed of through an order dated July 6th, 1934, filed July 9th, 1934, and, omitting the title of the cause and judge's signature, reading:

"This matter coming on to be heard upon the motion of the claimant herein, Mary (Bika) Bosick, for a new trial because of the loss or destruction of the transcript of the evidence herein and it further appearing that heretofore the transcript of evidence in said cause has been mislaid or lost and was not found until the 3rd day of July, 1934, and it now appearing that the said transcript has been recovered and that the claimant herein, Mary (Bika) Bosick, can complete her Bill of Exceptions on or before the time limit which is the 10th day of July, 1934, and the Court being now fully advised in the premises,

"IT IS ORDERED AND ADJUDGED that said motion for new trial be and it is hereby overruled and denied.

"DONE IN OPEN COURT this 6th day of July, A. D. 1934."

Upon Claimant's application, through an order likewise dated July 6th, and filed July 9th, 1934, the court directed that she be "given to and including the 20th day of August, A. D. 1934, within which to prepare and file her petition in error, bill of exceptions, and record on appeal herein, in the Supreme Court of the State of Wyoming." The record shows that the Bill of Exceptions in the case was duly presented to the trial judge for his signature, on July 7th, 1934, and that it was filed in the office of the Clerk of the District Court at Thermopolis, Wyoming, on July 9th, 1934, such presentation and filing being accomplished within the extended time allowed by the Court therefor, as already detailed. The trial judge's certificate to the Bill of Exceptions recites that the bill contains, among other things:

"All of the evidence produced or offered or received in evidence upon the part of the claimant herein and the employer Coal Company herein upon the trial of said cause, saving and excepting a certain portion of the testimony of witness William J. Lloyd, consisting of a drawing made by said witness, altered and marked by him while testifying under oath and which testimony is referred to as "Plaintiff's Exhibit 1," all of which more certainly appears in the transcript of proceedings at question No. 159 on page 22 and which said testimony by drawing and marking has been lost or destroyed as appears by the affidavits attached to claimant's Motion for New Trial filed herein on the 11th day of May, A. D. 1934."

By an order dated August 17th, 1934, and filed August 20th, 1934, reciting that upon claimant's application, and "for good cause shown," the Court granted her "an extension of time to and including the 20th day of September, 1934, within which to perfect her appeal and file her petition in error in the Supreme Court of the State of Wyoming." The petition in error in the case was filed here August 21, 1934, and the bill of exceptions aforesaid on August 31, 1934.

The defendant in error's motion to dismiss is based upon the grounds that the "petition in error, bill of exceptions, and record on appeal were not filed in this Court within 70 days from the date of the decision, or order on motion for new trial"; that these papers were not filed here within "any extended time" beyond said 70 days allowed by court order; and that no valid order extending the time within which said papers could be filed was ever made by the trial court.

That part of the Statute (Revised Statutes of Wyoming 1931, Sec. 124-114) to which we must look for guidance in disposing of the motion reads as follows:

"Any order given and made in any investigation or hearing by a court or judge, pursuant to the provisions of this chapter, shall be reviewable by the state supreme court on proceedings in error in the manner prescribed by the code of civil procedure; provided, however, that the petition in error, bill of exceptions and record on appeal must be filed in the supreme court within seventy (70) days from the date of decision or order on motion for new trial by a court or judge, unless the time be extended by order of court or judge."

As we understand the argument of the claimant in opposing the motion to dismiss, it is urged that the order made on July 6th, 1934, overruling her second motion for a new trial filed May 11th, 1934, is the order governing the seventy-day period provided for by the statute, as quoted above, and hence that the petition in error and bill of exceptions were filed in this court within proper time. The order disposing of claimant's first motion for a new trial was dated March 13, 1934, as we have seen, and the statutory 70 day period thereafter expired on May 22, 1934. We do not find any order in the record which, in terms, purports to extend that time, and which, as it necessarily had to be, was made within the seventy (70) day period aforesaid.

It has already been mentioned that claimant's first motion was based upon certain grounds which are specifically designated by the law of this state as causes for the vacation of the decision of the court, verdict, or report, as the case may be, when movant's substantial rights are materially affected. These grounds, as is usual, attack the judgment on its merits as improperly disposing of the questions arising upon the law and the evidence in the case. This motion was, of course, one such as is required by our Rule 13 relative to the review of a judgment by proceeding in error which states, among other things, in substance that this court will not on such a proceeding, consider a matter which "could have been properly assigned as a ground for a new trial in the court below, unless it appears that such matter was "properly presented to the court below by a motion for a new trial,...

To continue reading

Request your trial
6 cases
  • Sylvester v. Armstrong, 2066
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1938
    ......277; Fryer v. Campbell, 46 Wyo. 491; Chemical Co. v. Board of. Commissioners (Wyo.) 65 P.2d 1103. The ... In re. St. Clair's Estate, 46 Wyo. 446; In re. Bosick, 48 Wyo. 46; Mansfield v. Harris (Colo.) . 244 P. 474; ......
  • Claughton v. Johnson
    • United States
    • United States State Supreme Court of Wyoming
    • February 18, 1935
    ......Urquhart, 16 Ohio. St. 71; Grover Irrigation & L. Co. v. Ditch Company, . 1916C--L. R. A. 1275; Spaugh v. ......
  • In re Application of Gore, 2290
    • United States
    • United States State Supreme Court of Wyoming
    • March 27, 1945
    ...... Atchison, T. &. S. F. Ry. Co. v. Commerce Commission, ex rel. Illinois Coal. Traffic ... 37). Bosick v. Owl Creek Coal Co., 48 Wyo. 46, 41 P. 2d 533. . . ......
  • Wyodak Chemical Co. v. Board of Land Commissioners of Wyoming, 1993
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1937
    ...... lands supposed to contain coal, oil or minerals, and to make. and establish rules and regulations ... Clair's Estate, 46 Wyo. 446, 28 P.2d 894; Bosick. v. Owl Creek Coal Co., 48 Wyo. 46, 41 P.2d 533; and. Scott v. Ward, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT