Burnett v. Giblin

• Decision Date: 04 June 1928
• Docket Number: 1467
• Citation: 267 P. 689,38 Wyo. 421
• Parties: BURNETT v. GIBLIN, ET AL. [*]
• Court: Wyoming Supreme Court

267 P. 689

38 Wyo. 421

BURNETT v. GIBLIN, ET AL. ^[*]

No. 1467

Supreme Court of Wyoming

June 4, 1928

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by W. G. Burnett against J. J. Giblin and another co-partners doing business as the Henning Brokerage Company. After a judgment for defendant and an order sustaining plaintiff's motion for new trial, defendant's motion to vacate order granting new trial was sustained, and plaintiff brings error. Heard on motion to strike bill of exceptions and to dismiss proceedings in error.

John C Pickett and E. H. Foster, for the motions.

Plaintiff having attempted to have the cause reviewed on error, and also on appeal, defendants have filed separate motions, one for the dismissal of the error proceedings, the other for the dismissal of the appeal, and have filed separate briefs in support of each motion. The bill of exceptions filed herein was not presented to the court for allowance in a manner prescribed by Section 6864 C. S.; there has been an election of remedies and a waiver of proceedings in error by giving notice of appeal, under Section 6402 C. S.; 3 C. J. 342; Mitter v. Black Diamond Coal Co., (Wyo.) 191 P 1069; no appellate jurisdiction was acquired in the error proceedings, 6373 C. S.; Thompson v. Anderson (Tex.) 18 S.W. 153; Madison v. Matthews, (Tex.) 65 S.W. 198. The proceedings in error should be dismissed.

The attempted proceedings on direct appeal are not in accordance with the statute in that more than 70 days elapsed between the entry of the judgment and the filing of appeal record in the court below, 6404, 6406, 6408 C. S. Filing and service of specifications in error are necessary steps in perfecting an appeal, Caldwell v. State, 74 P. 496.

Curran & Cobb, contra.

Constructive service was had by publication under Sec. 6373 C. S.; the original summons having been returned "not found" by the sheriff. The record on appeal was completed and served September 17, 1926, four days after the entry of the order vacating the former order granting new trial; petition in error was filed August 11, 1927, less than one year after the order made September 13, 1926 vacating the order granting new trial. Direct appeal proceedings were abandoned for the reason that no specifications in error were filed, counsel not having been able to procure the proper transcript. The motions herein were not filed until 161 days after the filing of the petition; the movants have made a general appearance which should cure possible technical objections, McGinnis v. Beatty, (Wyo.) 196 P. 311. Three district judges signed the bill of exceptions for the reason that each had heard a portion of the matter. In Megown v. Fuller, (Wyo.) 258 P. 1023, it was held that the court reporter could properly request an extension of time. Plaintiff in error submits that he should not suffer by reason of the delay of the court reporter, Brooks v. State, (Wyo.) 210 P. 944; Morgan v. State, 26 Wyo. 212. Notice given under Section 6373 C. S., complied with the statute. A bill of exceptions may be presented to a judge who has gone out of office, Gilpatrick v. Perry, 26 Wyo. 538. Error in vacating an order granting a new trial may be presented without a bill of exceptions, Schmidt v. Bank, 29 Wyo. 264. The proceedings in error should be heard on the merits.

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

OPINION

BLUME, Chief Justice.

This case was tried by the court without the intervention of a jury in Natrona County upon issues duly joined. The court rendered judgment in favor of the defendant and dismissed the plaintiff's petition on May 4th, 1923, but the judgment was not entered of record until May 8th, 1923. A motion for a new trial was filed on May 17, 1923. This motion was sustained on December 22nd, 1924, Judge R. R. Rose presiding. The case being about to be set down again for trial, the defendants filed a motion on August 11, 1926, to vacate the order entered by Judge Rose on December 22nd, 1924, granting a new trial, upon the ground that the motion for a new trial was not filed within ten days after the decision in the case, pursuant to Section 5872, Wyo. Comp. Stat. 1920. This motion to vacate was sustained, Judge Bryant S. Cromer presiding, on September 13, 1926. Proceedings were thereupon taken by the plaintiff to bring this case to this court for review, to review the order of August 11, 1926 and the judgment of May 4, 1923. The steps first taken were in connection with a direct appeal as distinguished from a proceeding in error. Various orders were made extending the time for filing the record on appeal, and it was finally filed on August 12, 1927. Plaintiff, however, abandoned the direct appeal and has brought this case here by petition in error, that petition being filed in this court on August 11th, 1927. A bill of exceptions was prepared and filed herein, this bill being certified by the several judges who presided in the case, at various stages thereof, the bill being presented to and allowed by Judge Cromer on August 19th, 1927. The parties will be denominated herein as in the court below.

Counsel for defendants have filed a motion to strike the bill of exceptions from the files and to dismiss the case. The first motion is based on the ground that the bill of exceptions was not prepared and presented for allowance within the time allowed by law. We held in the recent case of Jones v. Parker, (Wyo.) 38 Wyo. 26, 264 P. 97, that the total time allowed a party within which to reduce his exceptions to writing and present them to the judge for allowance is 120 days. That time was, in the case at bar, exceeded by many months, and the motion to strike the bill must accordingly be sustained. The error assigned in the petition in error is that the court erred in holding that the motion for a new trial filed May 17, 1923 was not filed in time. Inasmuch as a motion for a new trial is not a part of the record unless embodied in a bill of exceptions, and inasmuch as the bill must be stricken as above stated, it is doubtful that there is anything left for us to review. We need not decide the question, however, for the reason that the motion to dismiss the proceeding in error must be sustained on another ground.

As already stated, the petition in error was filed herein on August 11th, 1927. At the same time a praecipe for summons was filed and a summons was issued on the same day. It was attempted to be served upon the defendants personally, but they could not be found. Thereupon, and on August 26th, 1927, one of the attorneys for the plaintiff filed herein his affidavit stating "that he is one of the attorneys of record for plaintiff in error; that service of summons cannot be had upon the defendants in error in the State of Wyoming." An alias summons was issued on the same day, and thereafter a notice was published in a newspaper published in Natrona County, Wyoming, for three consecutive weeks, commencing with September 9th, 1927, and ending with September 23rd, 1927, advising the defendants of the filing of the petition in error herein. The notice is defective in not containing the date of the filing of the petition in error herein, but we need not consider that point further. The important question is, as to whether or not any authority existed for giving constructive notice, as was done in this case. Section 6373, Wyo. Comp. Stat. 1920 provides, among other things:

"Thereupon a summons shall issue and be served...