Fitzpatrick v. Rogan

• Decision Date: 03 May 1921
• Docket Number: 1016
• Citation: 27 Wyo. 388,197 P. 565
• Parties: FITZPATRICK v. ROGAN
• Court: Wyoming Supreme Court

197 P. 565

27 Wyo. 388

FITZPATRICK v. ROGAN

No. 1016

Supreme Court of Wyoming

May 3, 1921

ERROR to the District Court, Sweetwater County; HON. JOHN R ARNOLD, Judge.

This was an action by John F. Fitzpatrick against Frank P. Rogan and another. From an order denying a motion for the appointment of a receiver pendente lite, plaintiff brings error.

Proceedings dismissed.

T. S Taliaferro, Jr. and W. A. Muir, for Plaintiff in error.

Brown &amp De Nise, for Defendants in error.

POTTER, C. J. KIMBALL, J., concurs. BLUME, J., did not sit, the cause having been submitted before he became a member of the court.

OPINION

POTTER, C. J.

This cause was brought in the district court for the dissolution of an alleged partnership and for an accounting, the plaintiff alleging by his petition, among other things, that he has been ousted from the partnership business, that the same is being conducted by his alleged partner, one of the defendants, that the latter is in possession of the partnership property, and refuses to allow the plaintiff any voice, share or interest in said business, or to account therefor. The record does not show a trial or a disposition of the cause upon the merits, but the case is here on error for the review only of an order denying a motion of the plaintiff for the appointment of a receiver pendente lite. At least, that is the only appealable order in the record, and is the order complained of by the brief of plaintiff in error, and the only order referred to in the briefs as before this court for review. The petition in error contains no description of the particular order or judgment complained of, but is defective in that respect. (Commissioners v. Shaffner, 10 Wyo. 181, 68 P. 14; Riordan v. Horton, 16 Wyo. 363, 94 P. 448.) It alleges merely that there is error prejudicial to the plaintiff in error in the record and proceedings of the district court in said cause, referred to by its title, and assigns as error only the denial of the motion of the plaintiff in error for a new trial.

The order aforesaid recites that the motion of the plaintiff, John F. Fitzpatrick, asking for the appointment of a receiver, came on to be heard, and the court having heard the argument of counsel in the matter and being fully advised in the premises doth deny said motion, to which order and ruling the plaintiff did then and there object and except. The record shows also another order in the cause of the same date, denying plaintiff's motion for a rehearing of the order denying the motion for the appointment of a receiver, and reciting that plaintiff objected and excepted thereto, and that, at plaintiff's request, he is granted until the next term of the court and the statutory period to present his bill of exceptions for allowance.

As above stated, there is but a single assignment of error, viz: that the court erred in denying the motion of the plaintiff in error for a new trial. And that assignment cannot be considered for the very substantial and conclusive reason that the motion for new trial is not properly in the record, there being no bill of exceptions nor anything to show that a bill was presented and allowed or filed in the court below. On the contrary, the authenticating certificate of the clerk of the district court states that the record on file here contains every pleading, motion and document filed in the case as well as each and every order made and entered therein. That certificate is dated August 5, 1920, and the record was filed in this court on August 9, 1920. If a bill has been presented, allowed and filed in the district court since that time, no effort has been made to bring it here by suggestion of a diminution of the record or otherwise, and we recall no reference to a bill of exceptions in the briefs.

It was said long ago and frequently repeated in the decisions of this court that a motion for a new trial is not a part of the record unless incorporated in a bill of exceptions properly prepared, allowed and signed. (Garbanatti v. County Commissioners, 2 Wyo. 257; Seibel v. Bath, 5 Wyo. 409, 40 P. 756; Rubel v. Willey, 5 Wyo. 427, 40 P. 761; Bank of Chadron v. Anderson, 7 Wyo. 441, 53 P. 280; Groves v. Groves, 9 Wyo. 173, 61 P. 866; Campbell v. Saratoga State Bank, 24 Wyo. 359, 158 P. 267; Morgan v. State, 26 Wyo. 212, 181 P. 598; Chatterton v. Bonelli, 27 Wyo. 301, 196 P. 316; Supreme Court Rule 13.) It is said in Bank v. Anderson, supra, that the exception to the ruling of the court denying a motion for a new trial must appear in the bill, and that the court cannot resort to any other record to supply it. And in Campbell v. Bank, supra, it was held that where the only error assigned is the overruling of the motion for a new trial, it will not be reviewed unless the motion be incorporated in a properly authenticated bill of exceptions, duly certified by the clerk as a part of the record. The question is discussed and other cases cited in our recent decision in Chatterton v. Bonelli, supra.

Again it may be at least questionable whether the assignment that the court erred in overruling the motion for a new trial would alone be sufficient to present for review the order of the court denying a receiver as a provisional remedy, for it is not clear that such a motion would be necessary or proper, either to preserve the exception to the order or to present the question again in the district court, especially if, as conceded by counsel in their briefs, the motion for the appointment of a receiver was submitted to the court below solely upon the verified pleadings. The rule of this court applicable to proceedings in error, providing that nothing which could have been properly assigned as a ground for a new trial in the court below will be considered unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was...