Groves v. Groves

• Decision Date: 01 August 1900
• Citation: 61 P. 866,9 Wyo. 173
• Parties: GROVES, ET AL., v. GROVES, ET AL
• Court: Wyoming Supreme Court

61 P. 866

9 Wyo. 173

GROVES, ET AL., v. GROVES, ET AL

Supreme Court of Wyoming

August 1, 1900

ERROR to the District Court, Converse County, HON. RICHARD H SCOTT, Judge.

On motion to dismiss. The grounds are stated in the opinion.

Motion overruled and dismissed.

Charles F. Maurer, and Burke & Fowler, for defendants in error, for the motion.

The requirements of law have not been complied with as to the filing of a petition in error. (R. S., Sec. 4251; Rule 11 of this court.) There is no transcript. Such files as are here are merely attached to the petition in error as a part thereof. A failure to file the papers required by the rules of the court is a ground for dismissal. (Hallack v Bresnahen, 3 Wyo., 73; Spencer v. McMaster id., 105; Trabing v. Meyer, id., 133; Cronkite v. Bothwell, id., 739; Bank v Anderson, 6 id., 521.) Affidavits and motions can not be brought into the record by copies certified by the clerk. (Syndicate Imp. Co. v. Bradley, 6 Wyo., 171; Van Horn v. State, 5 id., 501; R. S., Sec. 3743). When the verdict or finding is claimed to be against the law or evidence, the evidence must be embraced in a bill of exceptions, and if that is not done, and motion for a new trial is not in the bill, the case must be dismissed. (Rule 13; Murrin v. Ullman, 1 Wyo., 36; Geer v. Murrin, id., 37; Garbanati v. Co. Com'rs, 2 id., 502; Howard v. Bowman, 3 id., 311; France v. bank, id., 187; Cook v. Terr'y, id., 110; Wheaton v. Rampacker, id., 443; McKinney v. State, id., 719; Johnston v. Little H. C. Co., 4 id., 164; Siebel v. Bath, 5 id., 409; Rubel v. Willey, id., 427; Smith Drug Co. v. Casper D. Co., id., 510; Boulter v. State, 6 id., 66; Syndicate Imp. Co. v. Bradley, id., 171; Conway and Nickerbocker v. Smith Merc. Co., id., 327; Johnson v. Golden, id., 527; Bank v. Anderson, id., 521.)

W. F. Mecum, for plaintiffs in error, contra, contended that the petition in error was sufficient, and the evidence and motion for new trial appeared in the transcript as required by law and the rules of court.

POTTER, CHIEF JUSTICE. CORN J., and KNIGHT J., concur.

OPINION

POTTER, CHIEF JUSTICE.

Defendants in error move to dismiss the proceedings in error herein. The grounds of the motion are that there is no petition in error, no transcript of the record, no proper bill of exceptions, that the motion for a new trial is not incorporated in a bill of exceptions, and that the purported bill of exceptions does not show that it contains all the evidence.

We do not think that the objection that there is no petition in error is well taken. The petition recites the various proceedings had in the cause anterior to the judgment complained of. While it was unnecessary for the petition in error to rehearse those matters, they can be treated as surplusage. It sets forth, however, the final order complained of, and assigns the same as error on the ground that it is not in accordance with the facts or law; and also assigns as error the overruling of a motion for a new trial.

Upon the ground that the evidence and the motion for a new trial are not embraced in a bill of exceptions, the motion must be sustained. Plaintiffs in error seek the review and reversal of an order made January 9, 1900, adjudging that Emma Groves, one of the defendants in error, is entitled to the whole of the estate in Wyoming of her deceased husband, Samuel D. Groves. It seems that the right of the widow to the estate was contested by Elizabeth Lashley and John Groves, sister and brother respectively of the deceased. The contest was made, and the order or judgment entered in the proceedings in probate for the settlement of the estate of said decedent. From the final order it appears that the matter of the contest was heard upon the petition of the widow and administrator and the answers of John Groves and Elizabeth Lashley. The court found that the estate within the State of Wyoming, and subject to the jurisdiction of the court, did not exceed in value the sum of ten thousand dollars, and the whole thereof, left in the hands of the administrator, was awarded to the widow pursuant to the provisions of Section 4358, Revised Statutes.

Inconsistency between the findings and judgment is not charged. But the complaint is that the judgment is not supported by the law or the facts.

The objections urged by counsel for plaintiffs in error in their brief all relate to the finding of the court as to the value of the estate. That finding is embraced in the order complained of which shows that a hearing was had upon evidence. The evidence was not preserved by bill of exceptions, the only method provided by law for preserving it for consideration on error. There is a paper attached to the petition in error called a bill of exceptions, but it contains none of the evidence, although upon its face it shows that there was evidence given at the hearing.

An attempt is made to bring up...