Fryer v. Campbell

• Decision Date: 16 January 1934
• Docket Number: 1832
• Parties: FRYER v. CAMPBELL
• Court: Wyoming Supreme Court

28 P.2d 475

46 Wyo. 491

FRYER v. CAMPBELL

No. 1832

Supreme Court of Wyoming

January 16, 1934

Proceeding between George Fryer and Arthur Campbell. There was a judgment for Campbell, and Fryer brings error. Heard on motion by defendant in error, to strike the bill of exceptions and petition in error and dismiss the proceedings in error and motion of plaintiff in error for leave to file an amended petition in error.

Leave to file amended petition in error granted.

The motion to strike and dismiss was submitted on the brief of Armstrong & Armstrong and also argument by Mr. L. E Armstrong of Rawlins.

The order presented for review is not a final order; the bill of exceptions is not properly certified as containing all the evidence in the cause; the record is insufficient to authorize this court to review the order and judgment complained of; the abstract of record filed herein is insufficient under rule 37 of this court. A petition in error which does not describe the judgment or order sought to be reviewed, is defective. Board of Commissioners v Shaffner, 10 Wyo. 181; Fitzpatrick v. Rogan, 27 Wyo. 388. Where the petition fails to set out the judgment or record of any case, it must be dismissed. Higgins v Higgins (Kan. App.) 52 P. 906; Farmers' Bank v. Bank (Okla.) 140 P. 1150; Dixon v. Watson, (Tex. Civ. App.) 91 S.W. 618; Mills Company v. Tanner (Mo. App.) 271 S.W. 831; Riordan v. Horton, 16 Wyo. 363; Hall Oil Company v. Barquin, 28 Wyo. 151. An order overruling a motion for new trial is not appealable. Mitter v. Coal Company, 27 Wyo. 72; Young v. Shallenberger (Ohio) 41 N.E. 518; Hume v. Bowie, 148 U.S. 245; Newcomb v. Wood, 97 U.S. 581; White v. Geinger (Ore.) 139 P. 572; 3 C. J. 437. The certificate does not state that the bill contains all the evidence, Davis v. Minnesota Convention (Wyo.) 16 P.2d 48, and is not signed by the Judge. Seng v. State, 20 Wyo. 222; Fishback v. Bramel, 6 Wyo. 293; Howard v. Bowman, 3 Wyo. 311; McCague Inv. Co. v. Mallin, 23 Wyo. 201; Royal Insurance Co. v. Walker Company, 23 Wyo. 264; Callahan v. Houck Co. 14 Wyo. 201; Wyoming v. Holliday Company, 3 Wyo. 386. The record should not be permitted to be withdrawn for amendment. State v. Allen, 42 Wyo. 51. The trial court cannot amend the bill after expiration of the term. Stockgrowers' Bank of Wheatland v. Gray, 22 Wyo. 482. There must be a specific assignment of error relied on. Wolcott v. Bachman, 3 Wyo. 335. A ruling on a demurrer is not a reviewable order. Perkins v. McDowell, 3 Wyo. 328; Dobson v. Owens, 5 Wyo. 85. Errors not argued will be considered waived. Schmidt v. Bank, 29 Wyo. 260; Hogan v. Peterson, 8 Wyo. 549; Grimm v. Town of Washburn, 75 N.W. 984; Goldberg v. Title Company (S. D.) 123 N.W. 266; Cleveland Company v. True (Ind. App.) 95 N.E. 328. An insufficient record requires dismissal. Groves v. Groves, 9 Wyo. 173; Schmidt v. Bank, supra; Sioux City Seed Co. v. Montgomery, 42 Wyo. 170; Fitzpatrick v. Rogan, 27 Wyo. 388; Royal Ins. Co. v. Walker Company, supra. The abstract of record does not comply with rule 37 of this court. Brewer v. Folsom Co., 43 Wyo. 433. Unless a petition in error is filed within one year from rendition of judgment, the court does not acquire jurisdiction. Burnett v. Giblin, 38 Wyo. 421; Iven v. Jessup, 20 Wyo. 90; Court rule No. 37; 4 C. J. 399; Atchison v. Conlon (Kans.) 94 P. 148; Beels v. Investment Company (Nebr.) 141 N.W. 812. Noncompliance with rule requiring abstract of record is ground of dismissal. Simpson v. Association, (Wyo.) 19 P.2d 958. In dismissal of proceedings in error, the judgment below is affirmed and the penalty provided by Section 89-4809, R. S. 1931, should be assessed. The motion for a new trial should be included in the bill. Board of Commissioners v. Hinton, 1 Wyo. 358; Mosher v. Hilliard F. & L. Company, 1 Wyo. 359; White v. Company, 1 Wyoming 399. The application for leave to amend the petition in error should be denied. The application fails to show that the amendatory facts were unknown prior thereto. This is a requirement of the Code. Section 89-1063, R. S. 1931; Jones v. Parker, 38 Wyo. 241; Griggs v. Meek, 37 Wyo. 282; U. S. F. & G. Company v. Parker, 20 Wyo. 29; Callahan v. Houck Company, supra; Riordan v. Horton, supra; Dixon v. Watson (Tex. Civ. App.) 91 S.W. 618; Matthews v. Nefsy, 13 Wyoming 238. Filing of amended petition after demurrer filed, confesses the demurrer. Hanson v. Goodrich, 181 P. 739; 49 C. J. 562.

For plaintiff in error in support of application for leave to file amended petition in error, the cause was submitted on the brief and oral argument of Mr. N. R. Greenfield and Harold M. Johnson of Rawlins.

In support of application to amend petition in error, we cite the case of Riordan v. Horton, 16 Wyo. 363. Petition in error complies with Rule 11 of this court. The time for instituting proceedings in error has not expired, and plaintiff in error should be allowed to amend his petition in error, if deemed insufficient. Amendments in furtherance of justice, authorized by Section 89-1063, R. S. 1931, applies to proceedings in error. The application to amend was promptly made within the year allowed for instituting original proceedings in error, and should be granted. Western Alfalfa Milling Company v. Worthington, 29 Wyo. 56; Jones v. Parker, 38 Wyo. 241. The motion to strike and dismiss should be denied.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

In this cause, the defendant in error has filed a motion to strike the bill of exceptions, to dismiss the review proceedings, and to affirm the judgment of the District Court of Carbon County. The grounds set forth in the motion and argued in support of it are, in substance, these: 1. That the petition in error, in assigning the errors relied on by the plaintiff in error, merely complains of the order of the trial court overruling the motion for a new trial filed in the district court, and does not comply with the requirements of Rule 10 of this court which, insofar as pertinent here, reads:

"The petition in error shall distinctly set forth each of the errors complained of, describing with reasonable certainty the cause wherein the errors are alleged to have occurred, and the judgment or final order to be reviewed."

2. That the bill of exceptions is not properly certified as containing all evidence in the case. 3. That the record in the cause is insufficient to invoke a review of the order or judgment involved. 4. That the abstract of record filed herein by the plaintiff in error is insufficient under Rule 37 of this court.

A hearing was had on this motion on November 14th last and, on the 22nd of that month, plaintiff in error filed an application for leave to file an amended petition in error. Briefs supporting and opposing this application have been presented by the parties and, on December 9th last, their stipulation was filed waiving oral argument and submitting the matter for the court's decision.

An examination of the amended petition in error presented discloses that if it is allowed to be filed, the criticism suggested in the first ground of the motion, as stated above, will be without force as the defect--and it is a defect; see Fitzpatrick v. Rogan, 27 Wyo. 388, 197 P. 565 --in the original petition in error will be cured. Should such filing be permitted in the circumstances of this case? It is apparent here that the period within which proceedings in error may be instituted to review the judgment in question has not yet elapsed and, under the previous decisions of this court, in The Western Alfalfa Milling Co. v. Worthington, 29 Wyo. 56, 210 P. 280, and Jones v. Parker, 38 Wyo. 241, 266 P. 128, we think that leave should be granted to file the amended petition in error. In Jones v. Parker, supra, entirely new assignments of error were allowed to be substituted by amendment, in lieu of an assignment admittedly without force, where the leave to amend was asked "well within the year allowed by statute for commencing a proceeding in error" and, it not being clear that a dismissal of the pending proceeding in error would be with prejudice.

The grounds of the motion numbered "2" and "3," supra, may be considered together, as they involve, in substance, the same matter. It is said that the certificate to the bill of exceptions signed by the trial judge is insufficient, in that it does not state that the bill contains all the evidence in the case, and Davis v. Minnesota Baptist Convention, 45 Wyo. 148, 16 P.2d 48; Seng v. State, 20 Wyo. 222, 122 P. 631; Howard v. Bowman, 3 Wyo. 311, 23 P. 68, and other decisions of this court of similar import are cited. An examination of all these cases will make it plain that the only requirement insisted upon by this court relative to the point urged here is that the fact that the bill of exceptions contains all the evidence must appear somewhere in the bill, whether this be in the body thereof or towards its close and shortly preceding the judge's signature. The so-called final certificate of the authenticating officer is a part of the bill and establishes the verity of its recitals. Perhaps this matter is in no case made clearer than by Mr. Chief Justice Potter, in Boulter v. Cook, 31 Wyo. 373, 226 P. 447. In the case at bar, it is stated over the trial judge's signature that he signs the bill as a "true bill of exceptions." Among the recitals of the bill, following the court reporter's certificate, is the statement, "And the foregoing is all of the evidence introduced or offered by either party on the trial of said cause." When this recital is considered with the certified verification of the bill, it is plain that the requirements of this court concerning the point raised have been met.

The 4th ground of the...