Fremont Lodge No. 11, I. O. O. F. v. Thompson

• Decision Date: 05 February 1916
• Docket Number: 816
• Citation: 24 Wyo. 14,154 P. 600
• Parties: FREMONT LODGE NO. 11, I. O. O. F. v. THOMPSON
• Court: Wyoming Supreme Court

154 P. 600

24 Wyo. 14

FREMONT LODGE NO. 11, I. O. O. F. v. THOMPSON

No. 816

Supreme Court of Wyoming

February 5, 1916

ERROR to District Court, Fremont County; HON CHARLES E. WINTER Judge.

Action between Fremont Lodge No. 11 of the Independent Order of Odd Fellows, a corporation, and Fred L. Thompson, as County Treasurer and Ex-officio Collector of Taxes in and for Fremont County, Wyoming. From a judgment for the latter, the former brings error. Considered and decided on questions of jurisdiction and power of the appellate court to review the proceedings.

Proceedings in error dismissed.

E. H Fourt, for plaintiff in error.

L. E Winslow, for defendant in error, filed briefs for the respective parties on the merits. The cause was disposed of on jurisdictional questions and not considered on the merits.

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

OPINION

BEARD, JUSTICE.

The judgment of the district court which it is sought to reverse by this proceeding in error became final June 14, 1913. The petition in error was filed in this court October 7, 1914. The statute, Section 5122, Comp. Stat. 1910, is as follows: "No proceeding to reverse, vacate, or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of; * * * Provided, however, that the court rendering such judgment or making such final order upon application of the party desiring to institute such proceeding and upon making to said court a sufficient showing that said party will be unavoidably prevented from instituting such proceeding within said time, shall, by an order duly entered of record, give to said party a reasonable extension of time, not exceeding eighteen months, within which to institute such proceedings."

It is perfectly clear that the proceedings in error in this case were not commenced in time unless they come within the provision for an extension of time beyond the year. It appears from the record that on September 29, 1914, on the application of plaintiff in error, the judge of said court at chambers, made an order extending the time for instituting such proceedings until November 14, 1914. That order was made long after the year allowed for commencing proceedings in error had expired, and unless it had the effect of reviving such right, this proceeding was not instituted in time, and this court is without jurisdiction. In Casteel v. State, 9 Wyo. 267, (62 P. 348) this court construed a similar provision with reference to extending the time for filing a motion for a new trial. That statute (Sec. 5416, R. S., now Sec. 6278, Comp. Stat. 1910), provided: "An application for a new trial shall be by motion upon written grounds, which shall be filed at the term the verdict is rendered, and * * * * shall be filed within three (now ten) days after the verdict was rendered, unless additional time be granted by the court upon good cause shown." Mr. Justice Corn, in delivering the opinion of the court said: "The statute requires that the motion shall be filed within three days after the verdict was rendered. This court has no power or authority to disregard or set aside this provision. It is mandatory and binding upon us, and no authority is lodged in this court to change or modify its requirements. The exceptions to its operation are clearly set out in the statute itself, and ample provision is...