Goodrich v. Big Horn County Bank

• Decision Date: 17 August 1918
• Docket Number: 940
• Parties: GOODRICH v. BIG HORN COUNTY BANK
• Court: Wyoming Supreme Court

174 P. 191

26 Wyo. 42

GOODRICH v. BIG HORN COUNTY BANK

No. 940

Supreme Court of Wyoming

August 17, 1918

APPEAL from District Court, Big Horn County, HON. P. W. METZ, Judge.

Action by Goodrich and another against the Big Horn County Bank and another. From a judgment for defendants, plaintiffs appeal. Heard on motion to withdraw record for purpose of amendment.

Motion denied.

E. E Enterline, Thomas M. Hyde and H. W. Rich, for appellants.

C. A Zaring, Herbert V. Lacey and John W. Lacey, for respondents.

The court is without jurisdiction. Plaintiffs have moved for leave to withdraw the record and make amendments. It would be useless to amend the record, for the reason that if so amended, it would show that it was not filed within the time required by the statute, and the court would remain without jurisdiction. The record was certified by the Clerk below and filed on February 26th, 1918; that was more than seventy days from December 10th, 1917, the alleged date of the entry of the judgment. It is not shown that the time for preparing and filing the record was enlarged or extended by the court or judge, as permitted by the statute, if cause shown. So that if the record should be amended to show the entry of the judgment on the date stated in the motion, it would appear from the record that the appeal was not perfected within the time specified and limited by the statute.

POTTER CHIEF JUSTICE. BEARD, J., and BIYDENBURGH, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This case is here on appeal, and is before us on a motion of the appellants to withdraw the record for the purpose of presenting the same to the district court for amendment to show that the judgment was entered on December 10, 1917, and to explain the signing of the certificate of the district judge to the record on March 1, 1918, instead of February 26, 1918, the date that the record was filed.

The statute authorizing a review in this court of a judgment or order of a district court by direct appeal provides that such appeal must be taken by serving and filing a notice to that effect within ten days from the entry of the order or judgment appealed from, and that the appellant shall be entitled as a matter of right to seventy days after the entry of the judgment or order appealed from within which to prepare and file with the clerk of the district court a record for the appeal, which time may be extended or enlarged by the court or the judge thereof for cause shown. It also provides that the record on the appeal in civil causes shall be prepared by the clerk of the district court and that it shall consist of the original pleadings, motions, demurrers instructions given and refused, orders, verdict, finding, decision or judgment, and the notice of appeal, or certified copies thereof, securely attached together in their chronological order, and a transcript of the testimony, if one is prepared and filed, as authorized by the act, and is brought up on the appeal, and that to the whole thereof shall be attached the specifications of error; that the whole record when so prepared, shall be paged and numbered consecutively, and shall be certified to as true and correct by the judge and clerk of the district court. (Laws of 1917, Ch. 32, Secs. 1, 2, 4 & 6.)

Since the statute thus provides for serving and filing the notice of appeal, and preparing and filing the record on the appeal within a specified time respectively from the entry of the order or judgment appealed from, it is necessary, to show jurisdiction, that the fact of the entry of the judgment or order, as distinguished from the rendition or making thereof, and the date of the entry, shall be shown by the record. (Hahn v. Citizens' State Bank, 171 P. 889, 172 P. 705.) Having referred in the opinion in that case...