Daley v. Anderson

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtCORN, JUSTICE.
Citation48 P. 839,7 Wyo. 1
Decision Date26 April 1897
PartiesDALEY v. ANDERSON ET AL

48 P. 839

7 Wyo. 1

DALEY
v.
ANDERSON ET AL

Supreme Court of Wyoming

April 26, 1897


Appeal from State Board of Control to District Court taken August 30, 1893.

ERROR to the District Court for Carbon County, HON. JESSE KNIGHT, Judge.

William Daley appealed to the District Court from a decision of State Board of Control determining the priorities and amounts of appropriations of water from Separation Creek in Carbon County. The District Court sustained a motion to dismiss the appeal. From the order dismissing the appeal, Daley brought the case to the Supreme Court on error. Patrick Anderson and Robert Taylor were defendants in error. The facts are stated in the opinion.

Judgment affirmed.

McMicken & Blydenburgh, for plaintiff in error.

The word "month" means a calendar month. (L. 1888, Chap. 3, Sec. 3.) The time within which an act is to be done must be computed by excluding the first day and including the last. (Rev. Stat., Sec. 2341.) The day on which the appeal was perfected is to be excluded in computing the time for filing petition. (L. 1890-91, Chap. 8, Sec. 30.) The six months from August 30 would expire February 28 following. A calendar month which begins on any day other than the first day of a month, ends at midnight on the same date numerically less one of the next succeeding months; and a calendar month "after" or "from" any date other than the first of a month, ends at midnight on the same date numerically of the next succeeding month; and six calendar months at midnight on the same date of the sixth month after the date; but, as February had but twenty-eight days in 1894, the six months from August 30, 1893, did not expire until midnight of February 28, 1894. (Avery v. Pixley, 4 Mass. 459; Williamson v. Farrow, 1 Bailey, L. 611, 21 Am., Dec., 492; Glove v. Hare, 4 Neb., 131; McGinn v State, 46 Neb. 434, and cases there cited; Lester v. Garland, 15 Ves., Ch. 248; Brewer v. Harris, 5 Gratt., 285; Tramway Co. v Asso'n, 1 Q. B., 402 (1891), Hardy v. Ryle, 9 B. & C., 603; Guaranty & Co. v. Buddington, 27 Fla. 215; Watson v. Pears, 2 Campbell, 294; Com. v. Maxwell, 27 Pa. 444; Guaranty etc., Co. v. R. R. Co., 139 U.S. 137; Att'y. Gen'l of Wyo. Rep. 1893-1894, p. 82.)

Lacey & Van Devanter, for defendants in error.

The jurisdiction of the District Court over cases like this is wholly appellate. (Const., Art. 8, Sec. 2.) Such jurisdiction can not be conferred by consent of parties, and can only be acquired by a compliance with the statute regulating and providing for the appeal. The filing of the notice and bond is jurisdictional. They should have been filed August 2, 1893, but were not filed until August 30. Even had the notice and bond been filed in time, the petition was not. It is conceded that six months means six calendar months. There are but twelve calendar months in a year, so when any period of six calendar months is taken therefrom there must be a remaining period of six calendar months. Excluding August 30, there remained one more day in August; and including February 28, the time from taking the appeal (August 30) included August 31, and every day of each of the six calendar months from September to February inclusive. Therefore, there were six full calendar months and one day in addition. None of the authorities cited by plaintiff in error have any bearing here except the quotation from 46 Neb. from the English case of Migotti v. Colvill, 4 L. R. C. P., Div. 233. The reasoning there, it is submitted, is not good.

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

OPINION [48 P. 840]

[7 Wyo. 4] CORN, JUSTICE.

This case arises upon an alleged erroneous ruling of the district court of Carbon County in sustaining a motion of the defendants in error to dismiss an appeal taken by plaintiff in error from an order of the State Board of Control, determining the priorities and amount of appropriations of water from Separation Creek in that county.

The order, as appears by a certified copy of it, was made June 3, 1893. The plaintiff in error filed his notice and undertaking on appeal under Sect. 28, Chap. 8, Laws of 1890-91, on August 30, 1893, and his petition under Sect. 30 on February 28, 1894.

At the hearing the defendants in error presented their motion to dismiss the appeal for the reason "that plaintiff and appellant's petition in appeal was not filed within the time by law provided," and the district court sustained the motion and dismissed the appeal.

The statute, Sec. 28, Chap. 8, Laws 1890-91, provides that "the party or parties...

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37 practice notes
  • Application of Beaver Dam Ditch Co. Crowell v. City of Cheyenne, 2044
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1939
    ...merits of the action. The statutes distinguished rendition from the entry of judgment. Sec. 89-2201, 2212, 4902, 4906; Daley v. Anderson, 7 Wyo. 1; Hahn v. Bank, 25 Wyo. 467. The mistake was not made by the judge, but by the clerk. Williams v. Hayes (Wis.) 32 N.W. 44; City v. Brown (Cal.) 9......
  • In re Water Rights In Big Laramie River, 781
    • United States
    • United States State Supreme Court of Wyoming
    • October 4, 1920
    ...the district court, had not joined in the appeal here, (Johnson v. Irr. Co., 4 Wyo. 164); the same rule was announced in Daley v. Anderson, 7 Wyo. 1. Another case is that of Inv. Co. v. Carpenter, 9 Wyo. 110. Non-resident defendants were duly summoned by publication within 60 days after the......
  • Conradt v. Lepper
    • United States
    • United States State Supreme Court of Wyoming
    • October 3, 1904
    ...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 dismi......
  • Hahn v. Citizens State Bank, 922
    • United States
    • United States State Supreme Court of Wyoming
    • April 1, 1918
    ...Peterson, 13 Wyo. 513, 81 P. 878; Eggart v. Dunning, 15 Wyo. 487, 89 P. 1022.) The limitation of time is jurisdictional. (Daily v. Anderson, 7 Wyo. 1, 48 P. 839.) There is a distinction between the entry and rendition of a judgment, substantial and important. An entry is prerequisite to the......
  • Request a trial to view additional results
37 cases
  • Application of Beaver Dam Ditch Co. Crowell v. City of Cheyenne, 2044
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1939
    ...merits of the action. The statutes distinguished rendition from the entry of judgment. Sec. 89-2201, 2212, 4902, 4906; Daley v. Anderson, 7 Wyo. 1; Hahn v. Bank, 25 Wyo. 467. The mistake was not made by the judge, but by the clerk. Williams v. Hayes (Wis.) 32 N.W. 44; City v. Brown (Cal.) 9......
  • In re Water Rights In Big Laramie River, 781
    • United States
    • United States State Supreme Court of Wyoming
    • October 4, 1920
    ...the district court, had not joined in the appeal here, (Johnson v. Irr. Co., 4 Wyo. 164); the same rule was announced in Daley v. Anderson, 7 Wyo. 1. Another case is that of Inv. Co. v. Carpenter, 9 Wyo. 110. Non-resident defendants were duly summoned by publication within 60 days after the......
  • Conradt v. Lepper
    • United States
    • United States State Supreme Court of Wyoming
    • October 3, 1904
    ...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 dismi......
  • Hahn v. Citizens State Bank, 922
    • United States
    • United States State Supreme Court of Wyoming
    • April 1, 1918
    ...Peterson, 13 Wyo. 513, 81 P. 878; Eggart v. Dunning, 15 Wyo. 487, 89 P. 1022.) The limitation of time is jurisdictional. (Daily v. Anderson, 7 Wyo. 1, 48 P. 839.) There is a distinction between the entry and rendition of a judgment, substantial and important. An entry is prerequisite to the......
  • Request a trial to view additional results

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