Conradt v. Lepper

• Decision Date: 03 October 1904
• Citation: 13 Wyo. 99,78 P. 1
• Parties: CONRADT v. LEPPER
• Court: Wyoming Supreme Court

78 P. 1

13 Wyo. 99

CONRADT v. LEPPER

Supreme Court of Wyoming

October 3, 1904

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

On motion to dismiss.

Motion to dismiss denied.

H. V S. Groesbeck, for defendant in error, appearing specially for the motion.

Nothing appears here but the original papers, including the bill of exceptions, and they do not show the date of the rendition of the judgment. This of itself is sufficient to dismiss the cause. (Gramm v. Fisher, 4 Wyo. 1; S. C., 3 Wyo. 595; Daley v. Anderson, 7 Wyo. 1; Comm'rs. v. Shaffner, 10 Wyo. 181.) We present with this brief a certified copy of the judgment below, to be considered if the court does not dismiss, either upon the motion or sua sponte, upon its attention being called to the omission to bring up a transcript of the journal entries in apt time.

The proceedings in error were not commenced within one year after the rendition of the judgment complained of, as provided by the Revised Statutes, 1899, Section 4262, as amended by Section 1, Chapter 28, Laws of 1901. The plaintiff in error did not labor under any of the disabilities referred to by that statute, and hence the proceeding was not commenced within the period of limitation. The time must be computed from the rendition of the judgment. (Winkfield v Brinkman, 31 Kan. 25; Greer v. Spencer, 3 Ky. Law Rep., 469; Marinda v. Dowlin, 4 Ohio St. 500; Finch v. Ives, 24 Conn. 387; Mannix v Purcell, 46 Ohio St. 102; Wade v. Kimberly, 5 O. C. C., 33.) This is the rule though a motion for a new trial is not disposed of within the period of limitation. (Slattery v. Robinson, 7 Colo. App., 22; Shalty v. MacIntyre, 136 Ill. App.; Goldsborough v. Gable, 39 id., 278; Carpenter v. Brown, 50 Iowa 451; R. R. Co. v. Reasor, 6 Ky. Law Rep., 509; Griswold v. Ryan, 2 Mont., 47; Ins. Co. v. Swantkowski, 31 Neb. 245; Brown v. Coal Co., 48 Ohio St. 542; Young v. Shallenberger, 53 id., 291; Dowty v. Pepple, 58 id., 395; Selber v. Akron, &c., Co., 19 O. C. C., 633; Durand v. Higgins, 72 P. 567; Gallagher v. Cornelious, 23 Mont. 27; McCallom v. Ulen, 92 Mo. App., 384; Hollenbeck v. Tarkington, 14 Neb. 430; Brooks v. R. R. Co., 110 Cal. 173; Henery v. Merguire, 111 id., 1; Burchinell v. Bennett, 10 Colo. App., 150; Hill v. Hill, 114 Mich. 599; Ham v. Pub. Sch., 34 Mo. 181; Doorley v. Mfg. Co., 5 Okl., 594; Cooper v. Yokum, 91 Tex. 391; Conway v. State, 5 Wyo. 107; Caldwell v. State (Wyo.), 74 P. 496.)

The cause should be dismissed for the further reason that there is no transcript of journal entries showing when the judgment was rendered. (Selber v. Young, 34 So. 95.)

S. C. Downey and C. P. Arnold, for plaintiff in error, contra.

Proceedings in error are brought within time if commenced within the year after the trial court overruled the motion for a new trial, as no proceedings in error can be instituted while the motion for a new trial is pending. (Gramm v. Fisher, 3 Wyo. 595.) The judgment is not a finality until such motion has been passed upon. The condition precedent necessary for the presentation of errors in this court is the presentation thereof to the court below in a motion for a new trial and the denial of such motion. (Supreme Court Rule 13; Elliott App. Proc., Sec. 119, and cases cited.) The judgment is suspended pending a motion for a new trial, and the judgment is not to be considered as rendered for the purposes of appeal and writs of error until the motion is denied. (Watson v. Mayberry, 15 Utah 265; Orchard Co. v. Hanley, id. 506; Snow v. Rich, 61 P. 336; Bates v. Lyman, 35 Kan. 634; Slaughter House Cases, 10 Wall., 289; Memphis v. Brown, 94 U.S. 717; Alexander v. U.S. 57 F. 828; Trust Co. v. Stockton, 72 id., 1; Murdock v. Dist. Col., 23 Ct. Cl., 41; C. & I. Co. v. Field, 104 Ala. 471; Wheeler v. Barr, 6 Ind. App., 530; Moon v. Cline, 11 id., 460; R. R. Co. v. Doane, 105 Ind. 92; Sharp v. Brown, 34 Neb. 406; Louisville v. Muldoon, 19 Ky. Law Rep., 1386 (43 S.W. 867); Succession of Gilmore, 12 La. Ann., 562; Johnson v. Grove, 80 Mo. App., 170; Inman v. Estes, 104 Ga. 645; Colchen v. Ninde, 120 Ind. 88; State v. Kansas City, 16 S.W. 415; 2 Ency. Pl. & Pr., 137; Kendall v. Lucas Co., 26 Iowa 395; Baird v. R. R. Co., 72 N.W. 1020; Hauser v. Haines, 61 P. 660 (Cal.); Brison v. Brison, 90 Cal. 327; Water Co. v. Gage, 108 Cal. 243; Sanford v. Bacon, 75 Conn. 541.)

While it is admitted that the decisions in Ohio are persuasive on account of our adoption of the code from that state, they are not conclusive when rendered subsequently to our adoption of their statutes. In that state, however, the practice on error is radically different from that adopted in this state. There, no motion for a new trial is required to review error committed during the trial, or to call in question by appeal exceptions to the instructions or refusal to instruct; the only office of such a motion in that state being to challenge the sufficiency and weight of the evidence. (Searles v. State, 6 O. C. C., 331; Graves v. Hall, 10 id., 385; Earp v. Ry. Co., 12 Ohio St. 621; Lockwood v. Krumm, 34 id., 1.)

The decisions of this court in Conway v. State, 5 Wyo. 107, and Caldwell v. State, 74 P. 496, do not sustain the position taken by the defendant in error. Both of those cases arose under a criminal procedure, and the question here was neither raised nor suggested. Nor could it have been raised. After verdict in criminal cases, a motion may be made in arrest of judgment, which must precede sentence, and the rule prevailing at common law that motions for a new trial in criminal cases must be made before judgment has not been changed by the code. On the other hand, in civil cases judgment is immediately entered upon the return of the verdict or the findings of the court.

Since the decision in Gramm v. Fisher, supra, and the adoption in the opinion in that case of the reason and authority of Colchen v. Ninde, 120 Ind. 88, the question is not an open one in this court. Statutes providing for appeal are remedial and should be liberally construed in furtherance of the remedy. (Brown v. Evans, 18 F. 56; Rutherford v. Ins. Co., 1 id., 456; Tel. Co. v. Eyser, 19 Wall., 419; Watson v. Mayberry, 49 P. 479.)

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

OPINION

POTTER, JUSTICE.

The defendant in error moves the dismissal of the proceedings in error in this cause on the ground that the same was not commenced within one year after the rendition of the judgment complained of. It is conceded that the proceeding was not commenced within one year after the judgment was rendered, taking the date of the judgment as the date of its rendition, but that it was commenced within one year after the order of the court overruling the motion for new trial; and the question presented is whether the proceeding so instituted was commenced within the period allowed by law. The motion is based on the following statute:

"No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of; or, in case the person entitled to such proceeding is an infant, a married woman, a person of unsound mind, or in prison, within one year, as aforesaid, exclusive of the time of such disability; Provided, however, That the court rendering such judgment or making such final order upon application of the party desiring to institute such proceeding and upon making to said court a sufficient showing that said party will be unavoidably prevented from instituting such proceeding within said time, shall, by an order duly entered of record, give to said party a reasonable extension of time, not exceeding eighteen months, within which to institute such proceeding." (R. S., Sec. 4262, as amended by Chap. 28, Laws of 1901.)

According to the uniform holding of this court, no question will be considered on error from a judgment of the District Court which might properly have been presented to such court by a motion for new trial, unless such a motion is seasonably made presenting the question and an exception preserved to the ruling on the motion; and we have a rule of long standing to that effect, viz: "Rule 13. Nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions. The ruling of the court below upon each matter presented by a motion for new trial shall be sufficiently questioned in this court by an assignment that the court below erred in overruling such motion for a new trial."

After a verdict of a jury, report of referee or master, or decision by the court, a party deeming himself aggrieved is, for certain enumerated causes, allowed by statute, within the time therein limited, an absolute right to file a motion for new trial; and if any of the causes set up are found to be sufficient the statute requires the vacation of the verdict, report or decision and the granting of a new trial. (R. S., Sec. 3746.) The motion must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence, within ten days after the rendition of such verdict, report or decision. (R. S., Sec. 3748, as amended by Chap. 66, Laws 1901.) But there is no provision of statute preventing the entering of judgment upon a verdict of a jury or the findings of the court before the expiration of the period for filing motion for new trial, nor suspending the judgment until the determination...