Boulter v. Cook

• Decision Date: 03 June 1924
• Docket Number: 1225
• Citation: 31 Wyo. 373,226 P. 447
• Parties: BOULTER v. COOK
• Court: Wyoming Supreme Court

226 P. 447

31 Wyo. 373

BOULTER v. COOK

No. 1225

Supreme Court of Wyoming

June 3, 1924

ERROR to District Court, Fremont County; CYRUS O. BROWN, Judge.

Action by Anna L. Cook, executrix of the estate of John W. Cook deceased, against Ray Boulter and another. There was judgment for plaintiff and defendants bring error. Heard on motion to strike bill of exceptions and dismiss the proceedings.

Motion dismissed.

Gordon J. Christie for the motion.

The bill was not presented in time and there was no valid order extending time; 5864 C. S., motion for new trial was denied August 17, 1923; the bill of exceptions was not presented or allowed until November 19, 1923, which was too late Morgan v. State, 181 P. 598, Schlessinger v Cook, 8 Wyo. 484; the order made by Judge Rose on October 15, 1923 extending time was invalid; the bill was not allowed in open court nor signed by the trial judge, Sterling v. Wagner, 4 Wyo. 5; Chatterton v. Bonelli, 196 P 316; Gilpatrick v. Perry, 188 P. 442; Vines v. State, 116 P. 1015. The respective parts of the bill are not certified by the proper judges; 5867 C. S., Callahan v. Houck & Co., 14 Wyo. 201; the proceedings present no question for consideration by the court, Jones v. Ormeling, 222 P. 569; S.Ct. Rule 13; a bill must be presented within the statutory time or within that time, an extension of time be granted in open court or by the trial judge, (See cases cited above); the certificate is insufficient in form and substance, Callahan v. Houck & Co. supra; errors complained of should be assigned by motion for new trial, Jones v. Ormeling, supra.

T. S. Taliaferro, Jr. and W. A. Muir contra.

Judge C. O. Brown heard the cause; Judge Rose heard arguments on the motion for new trial which was overruled on August 17, 1923; on September 25, 1923 defendant presented to the court by filing with the clerk his bill of exceptions; on October 12, 1923 defendant moved for an extension of time to present his bill of exceptions and on October 15, 1923 Judge Rose made an order extending time for presentation sixty (60) days; the order of extension is valid, Gilpatrick v. Perry, 188 P. 444; it was predicated upon proper showing within sixty days, 5864 C. S.

Gordon J. Christie in reply.

The mailing of a bill to the clerk and the filing of it is not equivalent to the presentation of the bill which should not be filed until allowed and signed, Hardin v. Card, 14 Wyo. 480; the certificate of allowance shows on its face that the bill was not presented in time; the extension order was not authorized by statute, Schlessenger v. Cook, 8 Wyo. 484; court was not in session at the time; the unsigned bill was filed with the clerk September 25, 1923, where it remained until November 19, 1923 on which date it was presented to Judge Rose, and it was then presented to Judge Brown, who signed it sometime after; the certificate does not state when the bill was presented, nor that it contains all the evidence, and for that reason is insufficient, Royal Ins. Co. v. Walker Lbr. Co., 148 P. 340; Callahan v. Houcks & Co., 14 Wyo. 201.

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

OPINION

POTTER, Chief Justice.

This cause has been submitted upon the motion of defendant in error to strike the bill of exceptions and to dismiss the proceeding in error. The motion to dismiss is based upon the stated ground that there is no proper bill of exceptions and no question presented that can be considered here without a bill. It depends to some extent, therefore, upon the disposition to be made of the motion to strike the bill. The several grounds stated for striking the bill seem to be based upon the proposition principally discussed in the brief that the bill was not presented for allowance within the time allowed by law.

The cause was tried in the district court in Fremont County and the final judgment complained of rendered when said county was one of the counties of the sixth judicial district, and with Judge C. O. Brown, the regular judge of that district, presiding. A motion for new trial by one of the defendants in the cause, Ray Boulter, was filed in due time, stating as grounds that the findings, decision and judgment are not sustained by sufficient evidence; that they are contrary to law; that the petition does not state facts sufficient to constitute a cause of action, and is insufficient to support the judgment; irregularity in the proceedings preventing the defendant from having a fair trial; that the court erred in considering certain stated matters not properly in evidence; and that certain proposed evidence was erroneously excluded.

In the meantime Fremont County had become one of the counties of a new judicial district, the eighth, embracing also the adjoining county of Natrona, and Judge Brown, while remaining judge of the sixth district, had been succeeded as judge of the district court in and for said Fremont and Natrona counties by Judge Robert R. Rose, the judge of the eighth district. The motion for a new trial then came on for hearing before said court in Fremont County, with Judge Rose presiding, resulting in an order of the court on August 17, 1923, overruling it, to which order an exception was allowed the said moving defendant. The bill of exceptions, as prepared by counsel, was thereafter sent to or left with the clerk of the district court, who endorsed upon its face over his official signature "Filed Sep. 25, 1923." There is no other competent evidence of its having been presented at that time, unless a recital in a subsequent order of Judge Rose presently to be referred to might be understood as showing that he accepted the act of leaving the bill with the clerk as a presentation to him, a matter we shall not, however, attempt to decide.

Thereafter, by an order dated October 15, 1923, signed by Judge Rose, the time for presenting the bill of exceptions for allowance was declared to be extended sixty days from and after October 16, 1923; and the bill, as prepared by counsel and left with the clerk as aforesaid, was signed and allowed within the period of that extension by both of said judges, viz: on November 19, 1923. The bill as signed and allowed was filed on February 1, 1924. The fact that it was not filed earlier than that date is of no importance here. It is properly authenticated as the bill of exceptions in the cause. See Com'rs. v. Shaffner, 10 Wyo. 181, 68 P. 14. And if not marked filed at all, it might, we suppose, upon a proper showing, have been returned with directions for such an endorsement as of the date when it was received for filing by the clerk after allowance. The September filing endorsement is likewise of no importance, except to show the fact, if material, that, as prepared by counsel to be presented for allowance, it was on the stated date left with the clerk. Whether it might by that act be considered as then presented to the court or either judge would depend upon considerations not now material. See Hawley v. LeClair, 18 Wyo. 1, 102 P. 853. The proper time for "filing" a bill of exceptions is after it has been allowed and signed; it is then to be filed "as a part of the record. " Comp. Stat. 1920, Sec. 5867.

The bill recites that it contains all of the evidence, and the certificate concluding the bill, signed by both Judge Brown and Judge Rose, reads as follows:

"And for as much as the matters above set forth do not fully appear of record, the defendant, Ray Boulter, within the time allowed by law, tenders this, his bill of exceptions, consisting of 89 pages, numbered from one to 89 and prays that the same may be allowed and signed by the Honorable Robert R. Rose, Judge of the District Court of the Eighth Judicial District, sitting in and for the County of Fremont, in the State of Wyoming, who heard and denied this defendant's motion for a new trial herein, and that the same may be allowed and signed by the Honorable C. O. Brown, Judge of the Sixth Judicial District, who heard and tried said cause, and who rendered the decree herein sought to be reviewed in this proceeding in error. Which said bill of exceptions has been filed in the District Court of the Eighth Judicial District, sitting in and for the County of Fremont, State of Wyoming, pursuant to the statute, in such case made and provided, and which is accordingly done this 19th day of November, 1923."

There is appended thereto, following the judicial signatures, the signature of the attorney for the plaintiff below, under the notation "Examined and found correct," also the signature of the attorney for defendant James H. Hawkins, under a like notation. Notwithstanding the recital in said certificate that the bill was tendered within the time allowed by law, it is contended here that the record shows that it was tendered too late, and that is based upon contending counsel's view of the order aforesaid purporting to extend the time for presenting the bill. If the said extension order was valid and effectual according to its terms, then, regardless of any other consideration the presentation was in time, for if not presented until November 19, the date of allowance, that was well within the time as extended.

But it is argued by counsel in support of the motion that the said order was not a "court" order, and, as a "chambers" order, was ineffective for the purpose of extending the time for presentation to Judge Brown, and therefore, ineffectual to sustain that part of the bill requiring Judge Brown's signature to give it vitality. And the motion seeks, first, to strike the entire bill, and, second, that part requiring allowance by Judge Brown; it seeming to be the theory of counsel that the evidence and exceptions taken upon the trial could be preserved only by a bill settled and allowed by the...