Campbell v. Saratoga State Bank

• Decision Date: 16 October 1916
• Docket Number: 837,838
• Citation: 24 Wyo. 359,160 P. 333
• Parties: CAMPBELL v. SARATOGA STATE BANK (TWO CASES).
• Court: Wyoming Supreme Court

160 P. 333

24 Wyo. 359

CAMPBELL v. SARATOGA STATE BANK (TWO CASES).

Nos. 837, 838

Supreme Court of Wyoming

October 16, 1916

Error to District Court, Uinta County; David H. Craig, Judge.

On motion of plaintiffs in error to reinstate cause, and motion of defendant in error to strike motion to reinstate from the files. Both motions denied.

For former opinion, see 158 P. 267.

N. R Greenfield, of Rawlins, for plaintiffs in error.

Brimmer & Brimmer, of Rawlins, for defendant in error.

OPINION

PER CURIAM.

The proceedings in error in these cases were dismissed June 29 1916, on account of the defective record presented to this court. 158 P. 267. Counsel for plaintiffs in error has filed a motion, supported by affidavits, for a vacation of the order of dismissal and for a reinstatement of the cases on the docket; and counsel for defendant in error have filed their motion to strike the motion of plaintiffs in error from the files. Both motions have been submitted together.

Counsel for plaintiffs in error does not dispute the insufficiency of the record, as stated in the opinion, but seeks to excuse the imperfection and to be allowed now to withdraw the record and have it amended, and states in his affidavit that he sent the bill of exceptions to the clerk of the district court with directions to file it; that he was called away from home, and was necessarily absent for several weeks, and did not have opportunity to see and examine the record before it was filed in this court; that he relied upon the clerk of the district court to file and properly certify all of the original papers in the case to the Supreme Court in compliance with its order so to do, and that he had been informed by said clerk that he had done so; that he had no knowledge that the record and papers were not properly authenticated until advised by the opinion of this court dismissing the proceedings in error; that his attention was not called to the defects at the oral argument. The clerk of the district court makes affidavit to the effect that the failure to file and authenticate the bill was his oversight and mistake, and that he is willing to do so.

The motion to strike plaintiffs’ motion from the files is based upon the ground that the application to vacate the order of dismissal and reinstate the cases should be by petition for rehearing, and not by motion. We do not think that point well taken. Cronkhite v. Bothwell, 3 Wyo. 736, 31 P. 492; Gramm v. Fisher, 4 Wyo. 1, 31 P. 767, in which cases like motions were entertained. As above stated, it is not claimed that there was error in dismissing the proceedings upon the record presented; and counsel does not ask for a rehearing on that question, but seeks to have the cases reinstated and be permitted to ainend the record. It differs from a case in which it is contended that the order of dismissal was erroneous. A motion to strike a motion is not the proper practice. Reid v. Fillmore, 12 Wyo. 72, 73 P. 849. The motion to strike plaintiffs’ motion from the files is denied.

This court can consider...