Caldwell v. State

• Decision Date: 14 December 1903
• Citation: 74 P. 496,12 Wyo. 206
• Parties: CALDWELL v. STATE
• Court: Wyoming Supreme Court

74 P. 496

12 Wyo. 206

CALDWELL v. STATE

Supreme Court of Wyoming

December 14, 1903

ERROR to the District Court, Laramie County.

Frank Caldwell, having been convicted of a felony and sentenced to imprisonment in the penitentiary, filed his petition in error for the review of the judgment April 28, 1902. On May 25 1903, no briefs having been filed, and no extension of time therefor allowed, the court of its own motion dismissed the cause for want of prosecution. A motion was subsequently filed for the reinstatement of the cause, on the ground that the delay in the prosecution had been caused by the neglect of counsel. Hearing was had on that motion.

Motion denied.

M. A Kline, for plaintiff in error.

Certain forms of procedure have been established, but when to follow those forms would do injustice to anyone, we believe that the spirit of the law should be regarded as of higher importance than the forms and the letter of the law. In the case at bar the plaintiff in error is by the law charged with the negligence of his attorneys on the general principle that the negligence of the agent is attributed to the principal. Yet there is, on the other hand, the well settled rule that equity will not allow injustice to be done and, if necessary will intervene in order to right the wrong. We submit that in this case a great wrong would be done plaintiff in error if this case were not reinstated. Under the law and the evidence as adduced in the trial of his cause in the court below, he ought to be free today, instead of being confined behind prison walls. Enough injustice has already been done him by his attorneys, and we believe that this court should do all that lies in its power to right the wrong thus done him. The facts show that the plaintiff in error was in the penitentiary; his brother, upon whom, for manifest reasons, he had to depend in a great measure, was lying ill in the hospital, and his attorneys, who were then employed in his behalf, after collecting their fees in advance, simply allowed his interests to be neglected. The Attorney General entered into a verbal agreement with us, after we had come into the case, to give thirty days in which to file a brief in this cause, but within ten days after the date of said agreement this cause was stricken from the docket without notice to counsel. The brief had then been partly prepared, and it would have been filed within the thirty days agreed upon; and counsel for plaintiff in error further states that if this cause is reinstated, his brief will be filed within fifteen days thereafter.

Plaintiff in error was tried on the 25th day of September, 1901, on the charge of assault with intent to kill and murder one Stella Graham, and the jury returned a verdict finding him guilty in manner and form as charged in the information. In due time he made his motion for a new trial, which was denied, and he was sentenced to serve twelve years in the penitentiary. The case was brought to this court on a petition in error a few months later, but, as was stated above, the attorneys, who were then employed by plaintiff, simply took his money and neglected his interests.

Counsel for plaintiff in error further states that he is convinced, from the study of the record in the cause, that plaintiff in error was prosecuted with unusual severity; that a number of the instructions given in behalf of the State were clearly erroneous; that the verdict is contrary to the evidence; and that numerous errors of law occurred in the trial of said cause; that plaintiff in error did not have that fair and impartial trial which is guaranteed to every citizen of this commonwealth; that the State would suffer no wrong if this cause be reinstated, for it is the mission of the State and its judiciary to see that justice is done to all; and, further, that there would be an irremediable wrong to this plaintiff in error should such a reinstatement be refused.

J. A. Van Orsdel, Attorney General, for the State, submitted a statement to the effect that, after the petition in error was filed, the attorney then representing the plaintiff in error applied to him for an extension of time to file brief, and he stated to him that he would agree to a reasonable extension. That said attorney then left the State and nothing further was done about the matter until the attorney next employed for plaintiff in error asked for an agreement for an extension, and he, the Attorney General, then promised to stipulate for an extension of thirty days; but no such stipulation was called for, and he was not again approached about the case by that attorney. During the present year, some months previous, the attorney at present representing plaintiff in error informed him that he had been retained and asked whether he would agree to time for filing brief, and he replied that if the brief would be ready in thirty days he would not object to its filing, and would stipulate that it might be filed; that within said thirty days the court ordered the case to be stricken from the docket; that, as informed, there had been no summons in error served on the prosecuting officer of the county, and that officer had not waived such service; and, if the case should be reinstated, a motion to dismiss would be filed to dismiss, since it had become too late to procure service of summons in error; and there would seem to be no good reason for reinstating the case in view of that condition of affairs; that the case had been in the court for two years, and if a client should be held liable for the neglect of his attorneys there would be no good reason for reinstatement.

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

OPINION

CORN, CHIEF JUSTICE.

On May 25th, 1903, the petition in error in this case was dismissed by this court, upon its own motion, for want of prosecution and, on August 20th, 1903, the plaintiff in error filed his motion asking that the case be reinstated. The ground of the motion is, substantially, that plaintiff in error, who is in the penitentiary upon a conviction for a felony in this case, employed and paid counsel to prosecute his proceedings in error, but that such former counsel utterly neglected his interests and has finally left the State. The Attorney General calls attention to the fact that the return upon the summon in error does not show service of...