Esselstyn v. Owl Creek Coal Company

• Decision Date: 18 March 1918
• Docket Number: 930
• Parties: ESSELSTYN v. OWL CREEK COAL COMPANY
• Court: Wyoming Supreme Court

171 P. 264

25 Wyo. 406

ESSELSTYN v. OWL CREEK COAL COMPANY

No. 930

Supreme Court of Wyoming

March 18, 1918

ERROR to the District Court, Hot Springs County; HON. P. W. METZ Judge.

Action by E. E. Esselstyn against the Owl Creek Coal Company, a corporation. Judgment for the latter, and the former brings error. Heard on motion to quash the service of the original summons in error and the alias summons in error.

Proceedings in error dismissed.

C. A Kutcher and C. A. Zaring, for the motions.

Section 5111, Comp. Stats. 1910, as amended by Chapter 70, Laws 1917 clearly states the requirements as to the issuance and service of summons in error. Petition in error was filed December 10th, 1917, returnable January 10th, 1918. It was served January 24th, 1918, fourteen days after the return date. The service should be quashed. (In re. Big Laramie River, 23 Wyo. 75.) An alias summons in error was issued on February 23rd, 1918, and served on February 25th, 1918. This was too late, as the alias summons was neither issued or served within sixty days from the filing of the petition in error. The service of the alias summons should also be quashed. The cause should also be dismissed, as no other summons will be effectual to give the court jurisdiction, the time for perfecting the appeal having expired.

Goddard & Clark, contra.

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

The petition in error in this case was filed December 10, 1917. Praecipe for summons in error was filed and summons in error issued the same day and made returnable on or before January 10, 1918. Service of said summons was made January 24, 1918, and returned and filed January 28, 1918. Praecipe for alias summons in error was filed February 23, 1918, and alias summons in error was issued on that day and made returnable on or before March 25, 1918, was served February 25, 1918, and returned and filed February 27, 1918.

Defendant in error, appearing specially for that purpose, has submitted motion to quash the service of the original summons in error for the reason that it was not served until after the return day. Also to quash the alias summons in error for the reason that it was not issued or served until more than sixty days after the filing of the petition in error.

Chapter 70, S. L. 1917, amending and re-enacting Sec. 5111, Comp Stat. 1910, provides: "The proceeding to obtain such reversal, vacation or modification shall be by petition in error filed in the court having power to make the reversal, vacation or modification, and setting forth the errors complained of. There shall also be filed at the same time a praecipe for summons, or the affidavit hereinafter provided for, or both, as the case may be. Thereupon a summons shall issue and be served in the manner provided by law for the service of summons in civil actions, and service on the...