Bosler v. Morad, 4611

• Decision Date: 14 October 1976
• Docket Number: No. 4611,4611
• Citation: 555 P.2d 567
• Parties: Frank C. BOSLER, Appellant (Plaintiff below), v. N. E. MORAD and Bloody Turnip, Inc., a Wyoming Corporation, Appellees(Defendants below).
• Court: Wyoming Supreme Court

Page 567

555 P.2d 567

Frank C. BOSLER, Appellant (Plaintiff below), v. N. E. MORAD and Bloody Turnip, Inc., a Wyoming Corporation, Appellees(Defendants below).

No. 4611.

Supreme Court of Wyoming.

Oct. 14, 1976.

David N. Hitchcock, Laramie, for appellant.

James R. McCarty, Whitaker & McCarty, Casper, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

THOMAS, Justice.

Frank C. Bosler is before the Court in this case attempting to secure his right to appeal. Bosler did hope to have this Court review a final Judgment and Decree of the District Court of the Seventh Judicial District of the State of Wyoming, in and for Natrona County, which was entered on June 30, 1976. Under our Wyoming law Bosler could have appealed from that judgment as a matter of right, if, pursuant to Rule 73(a), W.R.C.P., his notice of appeal had been filed within 30 days. Bosler's Notice of Appeal was filed July 31, 1975, which was the 31st day after entry of the final judgment. According to the Certificate of Service on the Notice of Appeal, it was placed in the mail to opposing counsel on July 28, 1975, and there is no question raised that it was not mailed to the Clerk of the District Court on the same date.

This Court has held that the timely filing of a notice of appeal is a jurisdictional requirement, resulting in the dismissal of an appeal by this Court, of its own motion, if not accomplished. Bard Ranches, Inc. v. Weber, Wyo., 538 P.2d 24 (1975); and Bowman v. Worland School District, Wyo., 531 P.2d 889 (1975). A corollary of the jurisdictional rule is that this Court has no authority, since it is without jurisdiction, to afford any relief for the untimely filing of a notice of appeal. The district court, in accordance with Rule 73(a), W.R.C.P., can extend the time for filing of a notice of appeal for not more than 30 days upon a showing of excusable neglect. No application for such relief was made in the district court in either Bard Ranches, Inc. v. Weber, supra, or Bowman v. Worland School District, supra. The Bowman case expressly recognizes and sets apart from its thrust the situation in which an application for an extension of time based upon excusable neglect is submitted pursuant to Rule 73(a), W.R.C.P.

In this instance Bosler filed in the district court a Motion for Extension of Time seeking relief on the ground of excusable neglect under Rule 73(a), W.R.C.P. Bosler's position, asserted through his attorney, was that his experience had been that items placed in the mail in Laramie, Wyoming, from which place the Notice of Appeal was mailed, usually reached the office of the Clerk of the District Court in Casper, Wyoming, on the next day, and that in the experience of counsel none had taken more than two days, except for this Notice of Appeal which took three days. It would appear that the question was squarely posed to the district court as to whether Bosler should be relieved from the late filing of his Notice of Appeal on the ground of excusable neglect. The district court in ruling upon this motion said, 'That the plaintiff has not demonstrated to the court that it should extend the time for filing the notice of appeal for excusable neglect.' Bosler seeks a reversal of this ruling by the district court. ¹

Rule 73(a), W.R.C.P. is the same as Rule 73(a) of the Federal Rules of Civil Procedure as it read after its amendment in 1966 and prior to its abrogation by the adoption of the Federal Rules of Appellate Procedure. ² There is no question under the language of the rule that the authority to extend the time for filing a notice of appeal upon a showing of excusable neglect is vested exclusively in the district court, and involves the exercise of discretion by the district court. In an article discussing the 1966 Amendments to the Federal Rules of Civil Procedure, Robert L. Stern, a member of the Advisory Committee on Appellate Rules of the Judicial Conference of the United States, noted that before the amendment an extension of time could only be granted in cases of 'excusable neglect based on the failure of the party to learn of the entry of judgment.' He observed that the amendment permitting an extension of time 'upon a showing of excusable neglect' was made because experience had revealed other situations in which tardiness is excusable and it is unfair to dismiss the appeal. Mr. Stern stated specifically:

'The most obvious example, perhaps, is undue delay in the mails resulting from a severe snowstorm, or perhaps even from an unexpected swamping of the Post Office Department as has also recently occurred in Chicago. If a lawyer mails a notice of appeal two days ahead of the due date, when one day is ordinarily enough for the mail to be delivered, it would seem clearly unfair to bar the appeal because of a storm or other unforeseen cause of delay delayed the delivery. This example is not hypothetical; it has happened.' (Emphasis added). Stern, 'Changes in the Federal Appellate Rules,' 41 F.R.D. 297, 298-299 (1966).

This article is quoted with approval in Maryland Casualty Company v. Conner, 382 F.2d 13 (10th Cir. 1967). Professor Moore uses a similar example, noting, 'But if a party places the notice of appeal in the mail in time to have it delivered to the clerk's office in ordinary course but it is not so delivered, the district court may find excusable neglect.' 9 Moore's Federal Practice, 204.13(1), p. 974 (1975).

While the federal history would indicate that excusable neglect is still a strict standard, the amendment undoubtedly was incorporated to permit a less stringent approach than that previously used. Other federal cases suggest that excusable neglect may be found in the failure to file a notice of appeal because of a mail delay. Tuley v. Heyd, 492 F.2d 788 (5th Cir. 1974); Weaver v. Texas, 469 F.2d 1314 (5th Cir. 1972); and Evans v. Jones, 366 F.2d 772 (4th Cir. 1966). Recently, in a case involving an application to...