Elliott v. Sloan

• Citation: 251 P. 955,36 Wyo. 100
• Decision Date: 08 February 1927
• Docket Number: 1401
• Parties: ELLIOTT v. SLOAN, ET AL. [*]
• Court: United States State Supreme Court of Wyoming

251 P. 955

36 Wyo. 100

ELLIOTT v. SLOAN, ET AL. ^[*]

No. 1401

Supreme Court of Wyoming

February 8, 1927

APPEAL from District Court, Platte County; PERCY W. METZ, Judge.

Action by J. A. Elliott, receiver of the Platte County State Bank an insolvent banking corporation, against W. E. Sloan, U.S Jones, Wm. L. Ayers, and others. On plaintiff's appeal from judgment for the two defendants last named, a new trial was granted by the trial court, and said last-named defendants appeal. Heard on motion to dismiss.

Motion to Dismiss Denied.

O. O Natwick and W. B. Jones, for the motion. No brief.

Kinkead Ellery & Henderson, contra.

The appeal is from an order granting a new trial, after record on appeal had been perfected by the now respondents; the specifications of error filed by the now respondents, being in effect a motion for new trial, appellants appeal from the order granting new trial under 6410 C. S.; the motion is based upon the fact that appellants did not file or serve specifications of error; it is our contention that new specifications of error are not required under the circumstances; 6408, 6410 C. S. In appeals of this character, the only specifications of error that could be urged would be that the court erred in granting a new trial; appeals of this class do not require specifications of error in the admission or exclusion of evidence, or other errors of law in the trial proceeding; there being no statute or rule of court on the subject, specifications of error cannot be considered jurisdictional; Hansen v. Ry. Co., 29 Wyo. 421. The appeal should be considered without the specifications of error, and the motion overruled.

POTTER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

POTTER, Justice.

This case has been heard upon a motion to dismiss the appeal upon which the cause is pending in this court. That appeal was taken in the district court from an order granting a new trial upon a consideration of the specifications of error filed as a part of the record on the appeal previously taken in the cause by the respondent now here, J. A. Elliott, Receiver of Platte County State Bank. Said Elliott was the original plaintiff in the cause and W. E. Sloan, Charles R. Mason, U.S. Jones, B. F. Yoder, Otto E. Rouse, and William L. Ayers were the original defendants. Some of those not having been brought into the case by service nor having appeared, judgment was rendered upon a trial of the cause dismissing the action upon the merits and awarding judgment for costs in favor of defendants U.S. Jones and William L. Ayers. From that judgment the plaintiff Elliott, Receiver as aforesaid, appealed to the Supreme Court under the direct appeal statute, and filed his specifications of error complaining of the judgment as follows:

1. The findings and judgment are against and contrary to the law. 2. The findings and judgment are against and contrary to the evidence. 3. The court erred in entering judgment for defendants.

Upon a consideration of those specifications of error as provided by statute, the trial court granted a new trial, stating in his said order:

"Whereas, I have reviewed the record on appeal and have considered the specifications of error, and determined that the party appealing is entitled to a new trial of the issues in said cause. Now, therefore, it is hereby ordered that a new trial of said cause be had de novo, and the plaintiff in said cause is hereby granted a new trial. To all of which the defendants except."

That occurred on May 19, 1926, and within the proper time there after the defendants, U. S. Jones and William L. Ayers served and filed their notice of appeal from the said order granting a new trial. Thereupon, their said notice of appeal, together with the order showing the action of the court upon the specifications of error, as well as with the original specifications and the record on appeal as originally filed, were transmitted to this court properly authenticated.

The motion to dismiss is made upon the sole ground stated therein that these appellants have neglected and failed to serve and file specifications of error. And the sole question for consideration is whether it is the duty of original respondents in a direct appeal when appealing from an order granting a new trial of the action upon the original specifications of error, to file specifications of error stating the particular grounds of their appeal from said order.

We think no such duty devolves upon such appellants. But the questions to be considered in disposing of their appeal are those presented by the specifications of error filed by the original appellant or appellants, considered and acted upon by the district court in granting the new trial. Specifications of error are provided for by the direct appeal statute (Comp. Stat. 1920, Secs. 6406, 6408 and 6409), first in requiring (Sec. 6408) that the appellant (meaning the one who appeals from the judgment or final order upon the trial or disposition of the cause) shall, within ten days after the record on appeal is prepared and filed, serve upon the adverse party and file with the clerk specifications of error relied upon for a reversal of the cause on appeal; second, that such specifications of error, when filed, shall be authenticated by the certificate of the clerk and attached to the record on appeal and thereupon become a part of the record (Sec. 6406); and, third, specifying the method of serving the specifications of error as well as the notice of appeal (Sec. 6409).

It is then provided (Sec. 6410) that within five days after the specifications of error are filed the clerk shall notify the judge that the record on appeal is perfected and on file in his office, and that "it shall thereupon become the duty of such judge, within fifteen days after receiving such notice, to review the record on appeal and consider the specifications...