Farmers State Bank of Riverton v. Investors Guaranty Corp.

• Decision Date: 06 June 1935
• Docket Number: 1883
• Citation: 48 Wyo. 319,45 P.2d 1057
• Parties: FARMERS STATE BANK OF RIVERTON v. INVESTORS GUARANTY CORPORATION, ET AL
• Court: Wyoming Supreme Court

45 P.2d 1057

48 Wyo. 319

FARMERS STATE BANK OF RIVERTON v. INVESTORS GUARANTY CORPORATION, ET AL

No. 1883

Supreme Court of Wyoming

June 6, 1935

Rehearing denied October 1, 1935.

APPEAL from the District Court, Fremont County; SAM M. THOMPSON Judge.

Proceeding by the Farmers State Bank of Riverton against Investors Guaranty Corporation and others. From a judgment for defendants, plaintiff was granted an appeal. On appellant's motion to amend the abstract of the record and respondent's motion to dismiss the appeal.

Motion dismissed.

For the plaintiff and appellant, there was a brief on the motions by R. R. Rose, of Casper, and A. C. Allen, of Riverton, and oral argument by Mr. Rose.

The question presented is not jurisdictional. Violation of the court rule requiring abstracts authorizes the court in its discretion to dismiss the appeal. Simpson v. Building and Loan Association, 45 Wyo. 425. The court permits the filing of a supplemental abstract to cure any omission. Brewer v. Folsom Bros. Company, 43 Wyo. 433, 438. The cases of Mitter v. Black Diamond Coal Company, 27 Wyo. 72; Kabell v. Kabell, 42 Wyo. 360; Holliday v. Bundy, 42 Wyo. 60, and Wyoming Automotive Company v. Weisflog, 30 P.2d 490, cited in support of motions to dismiss, we do not believe are in point, the facts in the present case being considered. In Fryer v. Campbell, 46 Wyo. 491, permission was given to amend the abstract. And in St. Clair v. St Clair, 46 Wyo. 446, the court disposed of the case on the merits, calling attention, however, to the fact that in its decision so to do it did not regard the case as a precedent for the future. In the case of North Laramie Land Company v. Hoffman, 199 P. 988, it was held that an unsigned petition in error is not a nullity and that amendment by proper signature should be allowed. In Western Alfalfa Milling Company v. Worthington, 210 P. 280 and in Jones v. Parker, 266 P. 128, amendments to defective petitions in error were permitted. Failure to file briefs within the time required is not jurisdictional. Reynolds v. Morton, 144 P. 18; Union Pacific Ry Co. v. Grace, 137 P. 881. As to proof that service of notice of appeal could not be made within the county, this court held in McClintock v. Ayers, 34 Wyo. 476, that the certificate of the sheriff could be accepted as such proof. In the absence of a denial on the part of counsel for respondents that they could not be personally served in Fremont County, and in view of the fact that the state does not require any particular proof of the impossibility of personal service, we think it would be strange indeed if the court should hold that a case properly appealed ought to be dismissed merely because some sort of evidence of the impossibility of personal service within the county differing from that submitted in the form of the clerk's certificate is not incorporated in the record. The authorities cited in counsel's brief are to the effect that the certificate of an officer is evidence only so far as the matter certified comes within the official duty or cognizance of such officer. The rule is generally recognized, but with some qualifications. Certainly it has no application to the present situation.

For the defendants and respondents there was a brief on the motions by C. H. Harkins, of Worland; E. E. Enterline and Madge Enterline, of Casper, and oral arguments by Messrs. Harkins and Enterline.

The abstract of the record does not contain a statement of the pleadings; a statement of the judgment appealed from; assignments of error relied upon by appellant; contents of the notice of appeal; a statement of service of the notice of appeal; and is not certified as being a true and correct abstract. Appellant has failed to comply with the rules in the preparation of its brief, by neglecting to state points relied upon, and by not making reference to the page or portion of the record where any of the questions under discussion arise. The attempted certificate by the clerk of the district court of Fremont County is insufficient proof that service could not be made in Fremont County. Appellant has wholly failed to comply with court rules numbered 14 and 37 and is not entitled to have the judgment reviewed. Mitter v. Black Diamond Coal Company, 27 Wyo. 72; Kabell v. Kabell, 42 Wyo. 360; Brewer v. Folsom Brothers Company, 43 Wyo. 433; Simpson v. Occidental Building and Loan Association, et al., 45 Wyo. 425; Fryer v. Campbell, 46 Wyo. 491; Holliday v. Bundy, 42 Wyo. 60; Wyoming Automotive Company v. Weisflog, (Wyo.) 30 P.2d 490; Sec. 89-4909. This case differs from McClintock v. Ayers, 34 Wyo. 476. The clerk of court is not authorized to certify how or in what manner service was either attempted or made, 10 R. C. L. 1131; 22 C. J. 811, nor as to any fact beyond that which the law requires him to certify. McDonald v. Mulkey, 29 Wyo. 99. The burden of showing service of specifications of error on respondent is on the appellant, when properly and timely challenged by respondent, and of course the same rule must be applied in showing service of notice of appeal. Hanson v. C. B. & Q. R. R. Co., 29 Wyo. 421; Simpson v. Occidental Building and Loan Association, supra; Wyoming Automotive Company v. Weisflog, supra. The motion to dismiss should be granted.

OPINION

PER CURIAM.

This case was brought to this court pursuant to the direct appeal method of appellate procedure and has been attacked by the joint and several motion of thirteen of the sixteen respondents to dismiss the appeal, on the grounds, (1) that the appellant has wholly failed to comply with the rules of this court in the preparation of the abstract of record in certain particulars specifically enumerated; and, (2) because appellant's brief does not conform to the rules of this court, in that it does not contain a statement of the points relied upon and does not refer particularly to the page or portion of the record where any of the questions discussed arose.

Before this motion was heard appellant filed its motion for leave to complete its abstract of the record by adding thereto a tendered abstract of the pleadings, the judgment, notice of appeal, certificate of the clerk of the district court of Fremont County, relating to the service of said notice, specifications of error and certificate of counsel as to the verity of the abstract. Having at the same time filed a supplemental brief, appellant's motion additionally asks leave that said brief be taken and considered in support of its appeal.

The argument of counsel upon both of these motions was submitted at the hearing had for that purpose, and they are now before the court for disposition.

The tendered missing portions of the abstract of record, with one exception, presently to be noted, and the filed supplemental brief aforesaid appear in large measure to remedy the defects relied on by respondents' motion to dismiss. That the defects suggested by that motion were and are serious in character is plain from the previous decisions of this court. See Kabell v. Kabell, 42 Wyo. 360, 294 P. 695; Brewer v. Folsom Bros. Co., 43 Wyo. 433, 5 P.2d 283; Simpson v. Occidental Building & Loan Association, 45 Wyo. 425, 19 P.2d 958; Fryer v. Campbell, 46 Wyo. 491, 28 P.2d 475; Holliday v. Bundy, 42 Wyo. 61, 289 P. 1094; Wyoming Automotive Co. v. Weisflog, 47 Wyo. 32, 30 P.2d 490; In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894.

Following the views expressed in these cases, however, as a reasonably prompt effort has been made to cure the defective abstract and brief after their faults were called to the attention of this court by respondents' motion to dismiss, we might be inclined to grant appellant's motion were it not for the condition in which we find the tendered additional abstract material relative to the matter of service of the notice of appeal in this case. An examination of the record itself shows that this submitted material correctly reflects the situation there.

It has often been decided by this court since the case of Culbertson v. Ainsworth, 26 Wyo. 214, 181 P. 418, that the notice of appeal "must be served within ten days from the entry of the judgment and the fact of such service within that time must be shown by the record to give this court jurisdiction." The contention is presented on behalf of respondents that there is no service of the notice of appeal as required by law shown by the record in this case, and the point has been argued both by briefs of the parties and orally at the hearing. It is grounded upon the following facts disclosed by the record:

The judgment rendered by the district court of Fremont County which is now sought to be questioned was entered on November 28, 1933. On the following day, November 29th, a notice of appeal from this judgment was filed, addressed to all the defendants in the case, this notice appearing to be in the usual form and signed by one of the attorneys for the plaintiff, appellant here. There is no acknowledgment of service of said notice by any of the defendants or their counsel accompanying it and none was filed thereafter within the ten days allowed by law for that purpose. To show legal service of the notice the appellant relies upon a "certificate" made by the clerk of the district court aforesaid and filed May 2, 1934, three days before the record in the case, pursuant to several extensions of time for filing it, duly granted by the trial judge, was filed and nearly five months after the ten day period already referred to had elapsed. This "certificate" is to the effect that on the 29th of November, 1933, and after the entry of the judgment in the cause, a notice of appeal and two copies thereof were filed in the office of the clerk of said court by the plaintiff, directed to the defendants and each...