English v. Smith

• Decision Date: 17 February 1953
• Docket Number: No. 2514,2514
• Citation: 71 Wyo. 1,253 P.2d 857
• Parties: ENGLISH et al. v. SMITH.
• Court: Wyoming Supreme Court

Page 857

253 P.2d 857

71 Wyo. 1

ENGLISH et al. v. SMITH.

No. 2514.

Supreme Court of Wyoming.

Feb. 17, 1953.

Rehearing Denied May 29, 1953.

Thomas O. Miller, Lusk, Edward S. Halsey, Newcastle, for appellant.

Thos. A. Nicholas, Casper, for respondents.

HARKINS, District Judge.

This proceeding was heretofore submitted to the court on the briefs of the parties, and oral argument of the appellant. The result was a dismissal of the appeal because the final certificate of the Clerk of the District Court was not made until after the expiration of the time for preparing and filing the record on appeal in the District Court. For former opinion see Wyo., 244 P.2d 807.

Appellant has filed a petition herein claiming that the record was in fact filed in the District Court on January 4, 1951. This petition is supported by the affidavit of the Clerk of the latter Court wherein she states that the record was so filed. It also appears from said affidavit that immediately after filing the record the clerk, as required by Statute, notified the District Judge of the filing thereof, and that the Judge returned the notice to her office on January 9, 1951. Attached to this affidavit as an exhibit is a photostatic copy of the 'Notice of Filing Record on Appeal', dated January 4, 1951, and which according to the Clerk's endorsement thereon was filed January 9, 1951. A portion of the affidavit aforesaid relates to and sets out in full a photostatic copy of a letter, under date of January 5, 1951, addressed to counsel for appellant bearing the signature of the Clerk, in which she states that: 'I received the Record on Appeal and other papers which Mr. Simmons brought into the office yesterday. I handed the Notice of Filing Record on Appeal to Judge Ilsley today. It was dated January 4th, since it was filed here yesterday.' Other corroborating exhibits are attached to this affidavit. In addition to the petition appellant filed a motion requesting that we order the record back to the Clerk of Court directing her 'to show the date that the record on appeal was filed in her office * * * or correct the date of her certificate on page 143 of the Record on Appeal now filed * * * from the incorrect date of the 15th day of January, 1951, to the correct date of the 4th day of January, 1951, or, in the alternative, that this Court make its order correcting the date of said certificate to read the 4th day of January, 1951.' Copies of this petition and motion, together with the exhibits, were forwarded to Counsel for respondents, but no objection thereto has been made herein.

The petition and motion, in effect, request that the record be amended, and that the cause be reinstated. Taking the petition and motion as true--as we must, since there has been no objection thereto--it appears that the record did not, at the time of our former opinion, show the true situation respecting the date of the Clerk's certificate and the time of filing the record in the District Court.

While it is true that it is counsel's responsibility to see that the record is properly made up and perfected, and that applications to amend should ordinarily come before disposition of the appeal, we are not unmindful of the fact that appellant acted promptly upon discovery of the defect. It may be that he should have discovered it sooner, but as has been pointed out the cause was submitted on argument and briefs, and no question was raised concerning the jurisdiction of the Court or the sufficiency of the record. It was after the case had been submitted and consideration thereof undertaken by us that the jurisdictional question was discovered. The mistake here appears to be in the date--perhaps a typographical error--and it is a well known fact that such a mistake easily escapes attention. No doubt, had respondent moved to dismiss the appeal for lack of jurisdiction, the appellant would then have moved to amend, and under such circumstances we would have permitted the amendment.

Generally a record cannot be amended after dismissal of an appeal, but there are exceptions to the general rule. In 4 C.J.S., Appeal and Error, § 1119, p. 1592, it is said: 'An appellant cannot amend the record after a dismissal of the appeal, although an amendment has been permitted to show jurisdictional facts, the absence of which was the basis for the dismissal. Hence a certiorari to correct the record will not issue, after the appeal has been dismissed, unless to show jurisdictional facts responsible for the dismissal.'

It appears to be a matter of discretion here for this court, in McGinnis v. Beatty, 27 Wyo. 287, 196 P. 311, 315, commented: 'Though we hold that the court has jurisdiction, after an order dismissing an appeal for a defect in the record, to grant a motion to permit an amendment of the record filed in connection with a motion to reinstate or a petition for a rehearing, it should not be understood that such a motion then filed for the first time will be granted in all cases or as a matter of right. But whether it will or ought to be granted must depend upon the facts and circumstances of the particular case, as affecting the right to amend in view of the delay in the application, in addition to the showing ordinarily necessary to justify the return of a record for amendment.'

The case of Hinton v. Sun Life Ins. Co., 110 Tenn. 113, 72 S.W. 118, 119, appears to be in point here. In the latter case the court said: 'This case, under the style of 'W. A. Hinton v. Sun Life Insurance Company,' was heard on a former day of the term, and an opinion was then rendered directing an affirmance of the judgment of the court below, on the ground that the bill of exceptions was filed after the expiration of the time granted by the circuit judge, and that there was, therefore, nothing upon which the plaintiff in error could assign error. The plaintiff in error has now presented a petition showing that there was a mistake in the transcript by reason of the failure of the clerk of the circuit court to make a true copy, and that with this error corrected it would appear that the bill of exceptions was to be filed within 10 days from July 26th, instead of from July 19th, as the record shows. The prayer of the petition is that the plaintiff in error be allowed to suggest a diminution of the record, and that, upon the correction as to dates being made, the cause be reheard. The attorney for the defendant in error has filed an answer to the petition admitting its allegations, but insisting that it was the duty of the opposing counsel to examine the record before the original hearing in this court, and to have the correction then made, and that it is now too late. To this counsel for plaintiff in error replies that it was a mistake only as to dates; that such a mistake easily escapes the attention; that no point was made upon the bill of exceptions by counsel for defendant in error on the previous trial, but that this court itself raised the question, and plaintiff in error was not aware of its existence until the opinion came in, and that the determination of the case upon this point has operated in the nature of a surprise upon plaintiff in error. Although the application comes late, we think that under the facts stated it should be allowed. It is not necessary, however, that the suggestion of diminution should be actually made, or a certiorari awarded. The admissions contained in the answer to the petition, when taken in connection with the petition, supply the place of both, and correct the record so as to show that the bill of exceptions was filed in time.'

We see no important or substantial difference between the case at bar and the Hinton case, supra, and we think that under the facts before us that the petition and motion of appellant should be granted. The case having been fully submitted as mentioned before, we see no good reason to return the record for the mere physical act of correcting it, and that formality may be dispensed with. So we turn now to the questions submitted on the appeal.

Plaintiffs and respondents, hereinafter designated as plaintiffs, commenced this action against defendant and appellant, hereinafter designated as defendant, by filing their petition and causing summons to be published. The summons required defendant to answer the petition on September 16, 1950. On September, 9, 1950, a motion was filed as follows:

'Comes now the defendant herein and by his attorneys moves the court to make the petition herein filed more definite and certain, by pleading whether the representations set out in paragraph No. 2 of said petition, as being made by the defendant herein were verbal or in writing and if in writing by pleading the said representations in full.

'Dated this 9th day of September, 1950.

'E. J. Sullivan

'Ernest Wilkerson

'Raymond, Guthrie and Raymond

'By Rodney M. Guthrie.'

The motion was signed by Guthrie, he apparently having signed for the other attorneys.

On September 14, 1950, a withdrawal of attorneys was filed, which reads:

'Comes now E. J. Sullivan, Ernest Wilkerson, Raymond, Guthrie and Raymond and file their withdrawal as attorneys for the defendant in the above matter. This withdrawal being made at the express direction and request of Ernest Wilkerson who had originally requested the appearance of the undersigned, Raymond, Guthrie and Raymond in said matter.

'Dated this 15th day of September, 1950.'

The signatures on the withdrawal were in the same form as in the motion aforesaid. On the answer day, September 16, 1950, an order was signed by the Judge overruling the motion. In addition to other matters the order recited that 'this matter came on to be heard on September 16, 1950, and the plaintiffs appearing by Thos. A. Nicholas, their attorney, and the defendant having been served with process by publication and had actual notice of this action by registered letter, and having appeared by E. J. Sullivan, Ernest Wilkerson, and Raymond,...