Chatterton v. Bonelli

• Decision Date: 28 March 1921
• Docket Number: 988,987
• Parties: CHATTERTON v. BONELLI; Same v. BONELLI et, ux
• Court: Wyoming Supreme Court

196 P. 316

27 Wyo. 301

CHATTERTON v. BONELLI;

Same v. BONELLI et, ux

Nos. 987, 988

Supreme Court of Wyoming

March 28, 1921

ERROR to the District Court, Fremont County, CHARLES E. WINTER Judge.

Both actions were by Stella W. Chatterton, one against Paul F Bonelli and the other against Paul F. Bonelli and wife. There were judgments for defendants in both actions and plaintiff brings error.

The cause was heard on a motion to strike the bill of exceptions and dismiss proceedings in error.

Proceedings in error dismissed.

M. C Burke, for Motion in No. 987.

No application was made for an extension of time for presentation of a bill of exceptions within the 60 day period. On October 2, 1919, the bill was presented to the trial judge, who had resigned and he approved the bill on the same day that application was made to the successor of the trial judge for an order extending the time, and he entered a nunc pro tunc order allowing such extension, and under this order the bill was presented and filed on October 7, 1919, all without notice to defendant in error.

No reference appears in the brief to a motion for new trial except that there was such a motion and it was error to over rule it. The bill was presented 12 days after the time allowed by law and no application for extension of time was made until 12 days after the time allowed by law within which the bill might have been presented or an order made extending time. Presentation of a bill within the time allowed by statute is jurisdictional. Neglect to observe the rule cannot be cured by a nunc pro tunc order, Section 4595 amended by Section 1, Chapter 70, Laws 1917. The statute is mandatory, Sec. 4598 Comp. Stats. 1910; Morgan v. State, 181 P. 598 (Wyo.); No extension may be granted beyond the term, 4 Ency. Proc. 338. After the expiration of time no extension can be granted, United States Life Ins. Co. v. Shattuck, 43 N.E. 389. The bill must be presented in time, Harvester Co. v. Lumber Co., 25 Wyo. 367; Arnold v. Nichols, 25 Wyo. 458; 2 R. C. L. 144; Bell v. Thomas, 111 P. 76; Cartwright v. Liberty Tel. Co., 103 S.W. 982. An allowance of a Bill after expiration of time is void, 4 Ency. Proc. 352; Riverside Co. v. Mfg. Co., 57 N.E. 958 (Ohio); Neuman v. Becker, 46 N.E. 706 Long v. Newhouse, 49 N.E. 79 (Ohio). A nunc pro tunc order is proper where through neglect a prior order made was not entered, 20 Ency. Proc. 882. A nunc pro tunc order cannot be made where the order was never made in fact, Ludlow v. Johnson, 3 Ohio 553.

M. C. Burke, for Motion in No. 988.

The same condition exists in this case with regard to the record as in No. 987. The argument made for a motion in that case is submitted in support of the motion in No. 988, viz: that a presentation of the bill within the statutory time is jurisdictional; that a nunc pro tunc order cannot make an order where there was none, nor give jurisdiction where it is once lost. The same authorities are respectfully submitted as set forth in the brief for the motion in case No. 987.

F. Chatterton, in Resistance of Motion in No. 987.

It was shown by affidavit that owing to the pressure of business the reporter could not make up the necessary transcript for a Bill of Exceptions and complete the same until September 22, 1919; the bill was presented to the Court on September 29th, 1919, a regular day of the term, the Court having been in recess since August 28th. The court decided that the bill should be allowed and signed by the trial judge who had subsequently resigned, and it was signed by him on October 22, 1919. The delay in preparing the bill was unavoidable and beyond control of plaintiff in error; the bill was presented in open court during the same term at which the case was tried, and motion for a new trial was overruled; The court had not lost control of the record since the procedure herein was had during the term that the cause was tried, and there was authority for issuance of a nunc pro tunc order extending the time; the bill having been settled after the 60 days, but during the term, upon a nunc pro tunc order, the reasons for which are presumed to be sufficient, People v. Raschke, 15 P. 13. Cases cited by defendant in error relating to Comp. Stats. Sec. 4595 related to the section as it stood before amended by Chapter 70, Laws 1917, and in those cases the only error complained of was the over ruling of the motion for new trial. Numerous other errors are presented here. In Bell v. Thomas, cited by defendant, the order granting time was made at a subsequent term. The bill was presented in open court. It could not have been presented in vacation as the court was not in vacation, the judge having resigned September 1st, and not being in the county. It was impossible to comply with these provisions prior to the expiration of the 60 day period on September 20th. Delay of a court officer should not in justice circumvent the rights of a litigant. Colee v. State, 75 Ind. 511. If delay is caused by acts or omissions of the court or its officers, appeal may be taken, or writ of error after expiration of time. Why not a Bill of Exceptions also? Stamps v. Hardige, 28 S.E. 41; Burns v. Keas 20 Ia. 16; Cameron v. Calkins, 43 Mich. 191, 5 N.W. 292; Julian v. Grant, 34 How. Pr. 132; Dobson v. Dobson, 7 Neb. 296; Mount v. Van Ness, 34 N.J. Eq. 523; Heiyner v. Miller, 192 Pa. St. 365.

Chapter 27, Laws 1901, sections 1 and 4 authorizes Judges of the District courts to pass upon motions for new trials and sign and allow bills of exceptions at the time such matters are presented. Sixty days are allowed and until the first day of the succeeding term should such day be more than sixty days distant, in which to present their allowance for Bill of Exceptions. The bill was perfected within nine days after the transcript was available. The petition in error sets forth fourteen separate assignments of error which appear upon the transcrpit and record. The proceedings to obtain reversal shall be by petition in error, setting forth errors complained of, Comp. Stats. Sec. 5111.

F. Chatterton, Resisting Motion in No. 988.

The same points and authorities are cited in this case as were presented in No. 987 in resistance of the motion to dismiss.

POTTER, Chief Justice. BLYDENBURGH, J., concurs. Kimball, J., did not sit, the case having been heard before he became a member of the court.

OPINION

POTTER, Chief Justice.

These two cases, in which the parties are substantially the same, are here on error, and have been submitted upon a motion to strike the bill of exceptions, and to dismiss the proceedings in each case, and, subject to the disposition of that motion, upon the merits. The facts as to the bill of exceptions are the same in each case, and the motion to strike the same. It appears that in the lower court the evidence taken upon the trial of the first cause (our No. 987) was, by stipulation, considered as the evidence upon the trial of the other case, so far as competent and material, and the cause was determined upon that evidence. There is but one transcript of the evidence, and that is referred to in the bill of exceptions filed in each cause, and was filed in the lower court under the title of each case, and has been so filed in this court.

The motion states several grounds for striking the bill, but they all amount to this: That the bill was not reduced to writing and presented for allowance within sixty days from the date on which the order overruling the motion for new trial was made and entered, and that no extension of time therefor was requested or allowed within said period of sixty days; and that the district court was therefore without jurisdiction to allow the bill. And it is stated in the motion that there is nothing to consider in the cause without a bill, and therefore it is prayed not only that the bill of exceptions be stricken from the record but also that the cause in this court be dismissed.

There was a jury trial of the first case, above distinguished by our number 987, and upon the verdict in favor of the defendant returned on June 14 judgment was entered on June 16, 1919, and a motion for a new trial filed in proper time was overruled by an order appearing to have been made and entered on July 22, at the same term of the district court. In the other case, which was tried without a jury, judgment was rendered for the defendant on July 22, 1919, and a motion for a new trial appearing to have been filed on July 24, was overruled by an order dated July 25, 1919. The bill of exceptions in each case was allowed and signed by the judge who had presided at the trial of the cause on October 2, 1919, without anything to show that it had been presented prior to that date. There appears also an order entered in each case on October 7, 1919, one of the regular days of the term at which the judgment and orders aforesaid were entered, reciting that the bill was then presented to the court and was allowed, signed and ordered to be filed with the proceedings as a part of the record. The bill as signed on October 2 also contained a recital to the effect that it was ordered to be filed as a part of the record in the cause.

It further appears that on October 7, 1919, the plaintiff filed an application in each case for an extension of time within which to present her bill of exceptions for allowance, which was supported by an affidavit stating in substance the following facts: That within a few days after the order overruling the motion for a new trial plaintiff's attorney ordered from the court reporter a transcript of the evidence taken upon the trial of the cause; that he did not receive said transcript until September 22, 1919, and that it was impossible to prepare the bill of exceptions until said transcript...