Foree v. State

• Decision Date: 06 January 1906
• Parties: FOREE v. STATE
• Court: Wyoming Supreme Court

83 P. 596

14 Wyo. 296

FOREE v. STATE

Supreme Court of Wyoming

January 6, 1906

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

On motion to dismiss.

Motion to dismiss sustained.

E. E Lonabaugh and D. C. Wenzell, for the State.

The failure to cause summons in error to be issued within one year from the date of the rendition of the judgment is fatal to the jurisdiction of this court, as is also the failure to serve the Attorney General with the summons in error within the year aforesaid. (Caldwell v. State, 12 Wyo 206.) The summons in error must be issued within the one year limitation, so that even the service upon the prosecuting attorney of the county was not made in time. (Caldwell v State, supra; Robison v. Orr, 16 Ohio St. 285; Benson v. Michael, 45 N.W. 276; County v. LaBor, 15 P. 577; Hollinblake v. Turkington, 16 N.W. 472; Baker v. Schloss, 13 N.W. 212; Rogers v. Redick, 6 N.W. 413.)

The acceptance of service of brief by the Attorney General did not waive service of summons in error. If in any case it might be deemed a waiver, here the acceptance occurred after the time allowed for issuing summons in error. It is proper to move a dismissal of the cause. If a demurrer, however, should be held the proper practice, the motion will be regarded as a demurrer. There has been no application for a writ of error, and hence the question as to whether the constitution or law permits such a proceeding, and whether it is unlimited as to time, is not involved.

Metz & Sackett and S. T. Corn, for plaintiff in error.

The acceptance of service of the brief of plaintiff in error by the Attorney General constituted a voluntary appearance in the cause, and a submission to the jurisdiction of the court. The defendant in error may submit himself to the jurisdiction of the court in many ways without answering and entering his formal pleading, he may do this by appearing either in person or by attorney in court, and in many other ways that will readily suggest themselves to one familiar with the course of judicial proceedings. (Belnap v. Charlton, 34 P. 758.)

Whenever the Attorney General appears in any other way than in the way of objecting to the jurisdiction of the court, that appearance will bind him. He must keep out of the court for all other purposes if he desires to take advantage of an objection to the court's jurisdiction. (Coad v. Coad, 41 Wis. 26.)

Objection that the cause is barred by the statute of limitations can only be raised by answer, or, if the objection appears upon the face of the pleading, by demurrer. While this petition in error is a statutory proceeding, yet it is the commencement of a new action and is within the general rule requiring the statute to be raised by plea. According to the English practice, defendant in error must avail himself of this defense by plea. He cannot take advantage of it by motion, nor can the court take notice of it as a limitation of time is not an objection to the jurisdiction of the court. It is a defense which the defendant in error may or may not rely upon, as he himself thinks proper. (Burnapp v. Wight, 14 Ill. 333; Haley v. Elliott, 37 P. 27; R. R. Co. v. Tanner, 36 P. 541.)

In addition to the above matters, we maintain that the plaintiff in error would be entitled to a writ of error in this cause, no matter whether there is any merit in the motion to dismiss or not. And we also insist that there is no limitation in this state to the granting of a writ of error by the Supreme Court in a criminal case upon good cause shown.

The common law with reference to writs of error is in existence in this state. Under the old common law of England, a writ of error is grantable in all excepting capital cases, and that doctrine is recognized to exist in this state. It is a writ of right and issues as a matter of course under the old common law and could not be denied. In 1886 the Legislature modified the common law in force in the state, and abolished writs of error and certiorari in civil cases and left them remaining in criminal cases, recognizing the common law to continue as far as criminal cases were concerned, and in 1895 the Legislature limited the applications for writs of error to one year after the rendition of final judgment in the court below. This was a limitation upon the common law rule. Prior to that time there had been no limitation upon the granting of the writ of error by the Supreme Court in a criminal case.

In 1901 the Legislature removed the limitation of one year placed on the granting of writs of error under Section 5422 of the Revised Statutes of 1899, but did not abolish the writ of error, but provided another and new proceeding styled, "Petition in Error" in the Supreme Court direct, and limited the time for the filing of a petition in error under the new practice to one year from the rendition of the judgment in the court below.

The Legislature recognized the existence of the writ of error in this state in criminal cases by abolishing it in civil cases, and also recognized the rule that it would continue in this state unless abolished by legislative enactment. Then the question necessarily arises, does the creation of a new remedy abolish the old writ of error that has been recognized during all the existence of the common law? It does not abolish the same unless it is done by implication, and repeals by implication are not favored. (Bowers v. Greene, 1 Scam., 42.) But we insist that there is no necessary implication in the statute abolishing the writ of error. The statute merely gives an additional remedy to a defendant in a criminal case to proceed direct without requesting a writ of error, and it leaves the old proceeding unaffected. (Haines v. People, 97 Ill.; 1 Bish. Crim. Proc., Sec. 1370.) In this case we are entitled to a writ of error upon the facts shown in the record, and for the purpose, we desire to amend our petition and ask for a writ of error in this case if the court should hold that there is any merit in the motion to dismiss.

In 1890 the people of this state duly adopted a constitution, and in Section 3 of Article 5 clothed the Supreme Court of this state with authority to issue writs of certiorari and other necessary writs (which would include a writ of error). It cannot be questioned, therefore, that the Supreme Court has full jurisdiction to issue any writ, including the writ of error, when necessary and proper to the complete exercise of its appellate and revisory jurisdiction.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, District Judge, concur. VAN ORSDEL, J., having announced his disqualification by reason of having been Attorney General, HON. RICHARD H. SCOTT was called in to sit in the case.

OPINION

BEARD, JUSTICE.

The plaintiff in error, Earl Foree, was convicted in the District Court of Sheridan County January 4, 1904, of the crime of arson and sentenced...