Fertile Valley Canal Co. v. Kearney

• Decision Date: 31 January 1928
• Docket Number: 1461,1460
• Citation: 263 P. 620,37 Wyo. 475
• Parties: FERTILE VALLEY CANAL CO. v. KEARNEY, ET AL. [*] SAME v. LEVANDER, ET AL
• Court: Wyoming Supreme Court

263 P. 620

37 Wyo. 475

FERTILE VALLEY CANAL CO. v. KEARNEY, ET AL. ^[*]

SAME v. LEVANDER, ET AL

Nos. 1460, 1461

Supreme Court of Wyoming

January 31, 1928

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

Actions by the Fertile Valley Canal Company against James Kearney and others and against Frank Levander and others. From adverse judgments in both cases, defendant First National Company appeals. Heard on motion to dismiss.

Appeals dismissed.

Ernest J. Goppert, for respondent's motion.

No notice of appeal was served within the requirements of the statute, 6402 C. S.; Hahn v. Bank, 25 Wyo. 467; Goodrich v. Bank, 174 P. 191. The record fails to show service of notice of appeal within ten days after the entry of the judgment attempted to be appealed from.

Brome &amp Brome, contra.

A judgment was rendered and signed on April 13, 1927; it was filed for entry on April 15, 1927; appeal notice was served and filed on April 19, 1927; a certified copy of the decree in the record shows the words "Entered in District Court Journal, Book 4, at page 128-129, on May 2nd, 1927;" upon the appearance docket above the entry of the filing of the judgment and decree, in red ink are the words "Recorded May 2, 1927;" it is claimed that judgment entered after notice of appeal was given. None of the cases cited decide the question here presented; in Hahn v. Bank the judgment was signed and filed two or three weeks after notice of appeal was served and filed; in Goodrich v. Bank the transcript did not contain a transcript of the journal entry and nothing to show that it had been entered before the appeal was taken, and because the transcript of record was filed more than seventy days from the date of entry of judgment, the appeal was dismissed; in Culbertson v. Ainsworth, the appeal was dismissed because the Court found that the notice was served before judgment rendered and entered by the clerk; in this case the words written upon the journal at the foot of the entry were no part of the judgment, and the words in red ink upon the appearance docket were not properly written there; these interpolations were procured, to be made by the clerk, by the attorney for appellee to defeat appellant's right of appeal; with this improper matter eliminated from the record there is no basis for the motion and it should be denied.

OPINION

Per Curiam.

In each of these cases the respondent has filed a motion to dismiss the appeal on the ground that the notice of appeal was premature. The facts on the questions raised by the motions are the same in the two cases. We speak of one case, but our remarks apply to both.

The record on appeal in case No. 1461 contains a copy of the judgment concluding thus: "Done in open court this 13 day of April, A. D. 1927. P. W. Metz, Judge." Following the copy of the judgment is this statement: "Entered in District Court Journal, Book 4, Pages 128-129 on May 2 1927." Then follows a certificate whereby the clerk certifies "the foregoing to be a true...