Culbertson v. Ainsworth

• Decision Date: 16 June 1919
• Docket Number: 952
• Citation: 26 Wyo. 214,181 P. 418
• Parties: CULBERTSON v. AINSWORTH
• Court: Wyoming Supreme Court

181 P. 418

26 Wyo. 214

CULBERTSON v. AINSWORTH

No. 952

Supreme Court of Wyoming

June 16, 1919

ARPEAL from District Court, Washakie County, HON. JAMES H. BURGESS Judge.

Action by Roger Culbertson, administrator of the estate of William D. Albee, deceased, against Frank S. Ainsworth, et al. From a judgment for defendants, plaintiff appeals. Heard on motion to dismiss the appeal.

Appeal dismissed.

E. E Enterline, for respondent in support of the motion.

The notice of appeal was served two days before the judgment was entered; this was insufficient to confer appellate jurisdiction. (Hahn v. Bank (Wyo.), 171 P. 889; Goodrich v. Bank, 177 P. 134.)

R. B West, for plaintiff and appellant.

E. E Enterline, for defendants and respondents.

OPINION

PER CURIAM

This case is here on direct appeal and a motion has been submitted to dismiss the appeal. The only ground stated in the motion which we think necessary to consider is that the notice of appeal was given prior to the filing and entry of the judgment appealed from.

The record was filed in this court on July 27, 1918, and the motion to dismiss was filed on September 30, 1918, and submitted on October 17, 1918. It appears from the record that the cause was tried in the district court on March 22, 1918, and that at the close of the evidence on that day the court announced that the judgment would be for the defendants. That a judgment order in favor of the defendants containing also the findings was signed by the district judge who tried the cause under the date of March 23, 1918, and as done in open court on that day, and was filed and entered on March 29, 1918; that the notice of appeal, dated March 25, 1918, and stating in substance that the plaintiff appealed from the judgment rendered on March 23, 1918, and certain specified portions of the findings, was filed with the clerk of the district court on March 30, 1918; and that there was endorsed upon said notice as filed the following undated acknowledgment of service signed by the attorney for the defendants: "Copy of notice received and further service thereof waived." The record contains no other proof of service of the notice.

The statute under which the appeal is taken provides: "An appeal must be taken by serving a notice in writing to such effect, signed by the appellant, or his attorney, upon the opposing party, or his attorney, within ten days from the entry of the order or judgment appealed from, and said notice of appeal shall be filed with the Clerk of the District Court where the order or judgment appealed from is entered, within said ten days." (Ch. 32, Sec. 2, Laws 1917.) It was held in Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705, that a notice of appeal served and filed before the judgment appealed from was entered was premature and ineffective to bring the case here for review under the statute aforesaid.

The filing of the notice in this case was not premature, for it was filed after the judgment was entered--the day following such entry. But the service of the notice within the time prescribed therefor after the entry of the judgment or order appealed from is also essential to give this court jurisdiction, if, indeed, service of the notice is not the principal act required to be done within the prescribed time in taking the appeal. The language of the statute is that an appeal must be taken by serving a notice in writing to such effect, etc., and, that "said notice" shall be filed within said ten days. Clearly, therefore, the notice must be served within ten days from the entry of the judgment, and the fact of such service within that time must be shown by the record to give this court jurisdiction. (4 C. J., p. 39, sec. 1612, p. 41, sec. 1616; 2 Standard Ency. Proc., pp. 318, 346; 2 Ency. Pl. & Pr. 230.) This necessarily requires the filing of proof of service with the clerk of the district court and the incorporation thereof in the record, although an acceptance or acknowledgment of service properly signed written or endorsed upon the notice as filed and showing the date of service will be sufficient as proof of such service.

But unfortunately the written acknowledgment of the service of the notice in this case is not dated, and there is nothing in the record to show when the service thus acknowledged was accepted or made. The respondents, by affidavits attached to the motion to dismiss, show that the original notice was received by their attorney on March 26, 1918, and that service thereof was accepted by the endorsement aforesaid thereon on March 27, 1918. But we doubt our right to consider such affidavits filed in this court. In Hahn v. Bank supra, we said with reference to affidavits filed here to show the fact of the entry of the judgment or order appealed from and the date of such entry, that this court, in its consideration of the case, is confined to the record on appeal, and that we did not think it competent to show merely by affidavits filed in this court the fact that the judgment or order appealed from was or was not entered or when the entry thereof was made, thereby...