Dixon v. City of Worland

• Decision Date: 17 May 1979
• Docket Number: No. 4976,4976
• Citation: 595 P.2d 84
• Parties: Jim Edward DIXON, Appellant (Defendant below), v. CITY OF WORLAND, a Municipal Corporation, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 84

595 P.2d 84

Jim Edward DIXON, Appellant (Defendant below), v. CITY OF WORLAND, a Municipal Corporation, Appellee (Plaintiff below).

No. 4976.

Supreme Court of Wyoming.

May 17, 1979.

Jim E. Dixon, pro se.

Floyd D. Gorrell, Worland, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

McCLINTOCK, Justice.

Jim Edward Dixon was tried and orally convicted in the municipal court of the City of Worland of driving while under the influence of liquor. He appealed to the district court of Washakie County and the district judge addressed a letter to the parties saying that the "Court affirms the conviction." Dixon then appealed to this court, submitting the matter on written briefs without oral argument. We have examined the record and a majority of the court are of the opinion that it is entirely inadequate to justify exercise of appellate jurisdiction, either by the district court or this court. We therefore remand the case to the district court with directions to dismiss the appeal to that court.

Appellant elected to represent himself in the municipal court, the district court and this court. In doing so he is bound by the principle that

" * * * When one undertakes to represent himself he is entitled to no more consideration than if he had been represented by counsel. He is held to the same familiarity with required procedures and the same notice of statutes and local rules as would be attributed to a duly qualified member of the bar." Homecraft Corporation v. Fimbres, 119 Ariz. 299, 580 P.2d 760, 762 (1978).

As observed by the Supreme Court of Nebraska in State v. Morford, 192 Neb. 412, 222 N.W.2d 117, 118 (1974):

" * * * One of the penalties of a defendant's self-representation is that he is bound by his own acts and conduct and held to his record."

This court said in Suchta v. O. K. Rubber Welders, Inc., Wyo., 386 P.2d 931, 933 (1963) that one representing himself "must expect and receive the same treatment as if represented by an attorney."

We find the following omissions from the record:

1. The papers certified by the acting municipal judge of the City of Worland to the clerk of the district court of Washakie County, Wyoming do not include a form of judgment signed by the acting municipal judge as required by Rule 18(c), W.R.Cr.P.J.C. which provides in pertinent part:

"A judgment of conviction by court or jury shall set forth the plea, the verdict or findings, and the adjudication and sentence. * * * The judgment shall be signed by the justice and entered into his docket and a copy thereof delivered to the defendant if requested by him."

and which rule is made applicable to proceedings in municipal courts by Rule 1(a)(2), W.R.Cr.P.J.C. providing as follows:

"These rules shall also apply to police justice proceedings relating to trial of offenses against the ordinances of cities and towns."

2. The papers so certified by the acting municipal judge of the City of Worland do not show the dates of filing therein of the documents so mentioned, particularly a document entitled "NOTICE OF APPEAL TO THE DISTRICT COURT," bearing signature "Jim Edward Dixon," dated February 15, 1978, and bearing filing date in the district court of March 21, 1978.

3. The last-mentioned document contains no endorsement thereon, nor is it otherwise shown that service of such notice was made upon the City of Worland, through its city attorney or otherwise, whether by the defendant himself or by the clerk or other official of the municipal court of the City of Worland, such service being required by Rule 23(b), W.R.Cr.P.J.C. providing in pertinent part as follows:

"In all appeals the defendant shall, within ten days after entry of the judgment, file written notice of appeal with the justice, * * * and serve a copy of the notice of appeal upon the appellee."

4. The record on appeal contains a document entitled "NOTICE OF APPEAL TO THE SUPREME COURT OF THE STATE OF WYOMING" which bears filing date in the district court of May 1, 1978, but contains no endorsement thereon nor is it otherwise shown that service of such notice was made upon the City of Worland, through its city attorney or otherwise, whether by the defendant himself or by the clerk of the district court, such service being required by then applicable Rule 73(a), W.R.C.P. providing in pertinent part as follows:

"An appeal permitted by law from a district court to the supreme court shall be taken by filing a notice of appeal with the district court within thirty days from the entry of the judgment or final order appealed from and serving the same in accordance with the provisions of Rule 5 * * *."

This court has consistently held that compliance with rules promulgated by this court is required and we have regularly invoked the sanction of dismissal for failure of the appellant to comply therewith. Sun Land & Cattle Co. v. Brown, Wyo., 387 P.2d 1004 (1964); Bowman v. Worland School District, Wyo., 531 P.2d 889 (1975); Jackson v. State, Wyo., 547 P.2d 1203 (1976); Norton v. City of Lander (no opinion issued or reported, but being our No. 4741; order of dismissal March 9, 1978). In the first two cases cited the notice of appeal was filed one day late; in the last two the notice of appeal was served before a written judgment was entered.

Notwithstanding the fact that Rule 73(a) appears to consider as jurisdictional only the timely filing of the notice of appeal, we have in several other instances ordered dismissal of the appeal as the appropriate remedy for failure to comply with the direction of a rule. In Mayland v. State, Wyo., 568 P.2d 897 (1977), the notice of appeal from conviction in justice of the peace court to the district court did not " 'state with particularity the alleged errors of the justice or other grounds relied upon for appeal'," as directed by Rule 23(c), W.R.Cr.P.J.C. Unlike Rule 23(b), which provides that failure to file timely notice of appeal shall be deemed a waiver of the right to appeal, subsection (c) provides no express penalty or sanction. A motion to dismiss for want of a proper statement of reasons was filed with but ignored by the district court which affirmed the ruling of the justice court. Although neither of the parties mentioned this matter in their briefs in this court, we declined to consider the appeal and remanded the case to the district court with instructions to dismiss the appeal and reinstate the judgments of the justice court.

Of equal pertinence to this case is Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327, 328 (1968) where this court upon its own motion dismissed an appeal from a compensation award made by the district court. We there held that we were "duty bound to inquire into the matter and dismiss the appeal if the record discloses a want of such jurisdiction." The fatal defect in the proceedings was the lack of a formal judgment, the appellant having filed his notice of appeal after the district court had issued a memorandum opinion. We thereby held that the existence of a formal judgment is a Sine qua non to the existence of a valid appeal. The dismissal in Norton, supra, is consistent with this view since the matter was first remanded to the district court to determine if the record in the case could be corrected. The district court held that the justice docket entry, made before the notice of appeal was filed, could not be considered as a judgment, and only the formal judgment, entered after appellant had filed his notice of appeal, could be considered. We thereupon dismissed the appeal for want of a timely notice.

In other recent but unreported cases we have without opinion and upon our own motion dismissed appeals for omissions other than failing timely to file the notice of appeal: No. 5032, Tanner v. Burlington Northern, Inc. (order January 24, 1979, denying motion for extension of time in which to file brief, the motion having been filed after the time for filing the same had expired, and dismissing the appeal); No. 5039, Beaudoin v. State Fire and Casualty Company (order January 19, 1979, dismissing appeal for failure to file briefs); No. 4832, Cotton v. State (order December 16, 1977, dismissing appeal for failure of brief to comply with provisions of Rule 12 of the Rules of the Supreme Court of Wyoming).

A majority of the court believe that Jackson v. State, supra, is direct authority of this court requiring dismissal of the appeal. The district judge in that case had on December 13, 1974 orally announced his decision reaffirming a prior decision which had been reversed and remanded for further trial-court proceedings. See Jackson v. State, Wyo., 522 P.2d 1286 (1974). A written order was then signed on December 23, substantially in keeping with the judge's expressions from the bench. Notice of appeal was filed December 13, appealing from "final judgment" entered December 13. We held that there was no entry of judgment until December 23 and that the notice filed on December 13 was therefore premature.

"We said in Culbertson v. Ainsworth, 26 Wyo. 214, at pages 215 and 216, 181 P. 418 at page 418 ((1919)), and Hahn, supra (Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, reh. denied 172 P. 705 (1918)):

" '. . . (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 . . .' " 547 P.2d at 1206.

The significance of these dismissals is that unless a judgment has been entered, whether in the district or minor court, there is nothing to appeal from. We have held that a written judgment of the district court is an essential prerequisite to a valid appeal to this court. Rule 18(c), W.R.Cr.P.J.C. is positive in its direction that a written judgment be entered in the municipal court. We cannot with reason say that it is essential in the district court but not in the minor court. We said in Mayland v. State, supra...