Hahn v. Citizens State Bank

Citation171 P. 889,25 Wyo. 467
Decision Date01 April 1918
Docket Number922
PartiesHAHN v. CITIZENS STATE BANK, ET AL
CourtWyoming Supreme Court

Rehearing denied May 16th, 1918, Reported at: 25 Wyo. 467 at 485.

APPEAL from District Court of Sheridan County; HON. E. C. RAYMOND Judge.

Action by Herman L. Hahn against the Citizens State Bank and T. C Diers. Judgment for defendants and plaintiff appeals. Heard on motion to dismiss the appeal.

Appeal dismissed.

Charles A. Kutcher and Camplin & O'Marr, for respondent, in support of motion to dismiss.

An examination of the record shows that appellant has failed to comply with the requirements of the appeal act in two particulars, viz.: (a) Failed to comply with Section 2 as to the service of notice upon respondents within ten days from entry of judgment, and (b) failed to serve respondents and file with the clerk specifications of error within ten days after the record on appeal was prepared and filed as required by Section 8. The act clearly requires service of notice within ten days from entry of the judgment, not ten days from its rendition; the rule is mandatory. (Todd v Peterson, 13 Wyo. 513, 81 P. 878; Eggart v. Dunning, 15 Wyo. 487, 89 P. 1022.) The limitation of time is jurisdictional. (Daily v. Anderson, 7 Wyo. 1, 48 P. 839.) There is a distinction between the entry and rendition of a judgment, substantial and important. An entry is prerequisite to the right of appeal. (Black on Judgments, Sec. 106; 2nd Pl. & Pr. 213, 248.) An appeal taken prior to the entry of judgments should be dismissed. (State v. Lamm, 69 N.W. 592; Chamberlain v. Hedger, 73 N.W. 75; Coburn v. Board, 74 N.W. 1026; Sickling v. Ry. Co., 74 N.W. 1029; Smith v. Hawley, 78 N.W. 355; Martin v. Smith, 78 N.W. 1001; Bank v. Oliver, 78 N.W. 1002; Neeley v. Roberts, 80 N.W. 130.) Notice served before appeal taken is improper. (Heil v. Simons, 28 P. 475.) A compliance with the statute is jurisdictional. (Muckle v. Columbia County, 108 P. 120; Stierlen v. Stierlen, 78 N.W. 990.) Time of entry of the judgment cannot be shown by an affidavit of the clerk. (Smith v. Hawley, 78 N.W. 355 (S. D.) Appellant failing to comply with Section 8 of the act by not filing and serving within ten days after the record on appeal was prepared, a specification of errors. Both of the foregoing requirements are jurisdictional. The appeal should be dismissed.

R. P. Parker, for appellants.

Notice of appeal was served on June 23rd. The case was finally disposed of on June 14th by a directed verdict; the order and verdict being entered of record. The order directing a verdict was one affecting a substantial right, determined the action and prevented a judgment and is therefore a final order. (Conradt v. Lepper, 78 P. 1.) The affidavit of the clerk here presented shows judgment was entered on June 13th. The clerk's record is the only source of information. The record is conclusive when questioned collaterally. (16 Cyc. 684.) The record itself shows, "Done in open court the 14th day of June, 1917," hence the notice of appeal on the 23rd of June is in time. The appeal act, Chapter 32, Laws 1917, provides for a review of any judgment or order theretofore reviewable by writ of error. Such orders are defined by Section 5107, Comp. Stats. The order in question was appealable within the definition found in the section. The specifications of error were served August 22nd; transcript was filed August 20th. Section 10 of the appeal act provides that notice shall be given to the judge within five days after the specifications are filed with the clerk. The trial judge resides at Sundance and could not have received notice before August 27th. The section also provides that the judge shall within fifteen days review the record. There was insufficient time. The record was filed in the Supreme Court on September 15th and presumably mailed from Sheridan on the 13th of August. Service of the specifications of error is not jurisdictional. Notice of appeal was served within ten days from the entry of the order directing the verdict, which was a final order and within ten days from the entry of judgment thereon. Specifications of error were served within ten days from the filing of the record by the clerk of the District Court, as shown by affidavit annexed. The motion should be denied.

Charles A. Kutcher and Camplin & O'Marr, in reply.

Judgment could not be entered on June 13th, which was one day prior to its rendition. An order directing a verdict is not a final order and the case of Conradt v. Lepper cited by appellant does not sustain his contention. The appeal act permits a review of orders and judgments reviewable by error proceedings. An order is distinct from a final order. (Sections 4606, 5107 and 5109, Comp Stats. 1910.) The sections when construed together make it clear that the verdict is not a final order and therefore not appealable. It is merely a step in the progress of the trial, preliminary to and incidental to a judgment. An order sustaining a demurrer is not appealable. (Turner v. Hamilton, 67 P. 1117.) A finding of a right of possession in replevin is not a final order. (Gramm v. Fisher, 29 P. 377.) An order refusing to direct a verdict is not a final order. (Bussell v. City, 101 N.W. 1126.) There must be a final judgment. (School District No. 3 v. Tube Co., 80 P. 155.) The record cannot be aided by the affidavit of opposing counsel.

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

OPINION

POTTER, CHIEF JUSTICE.

This case is brought to this court under the statute providing for a so-called direct appeal from the District Courts and prescribing the procedure therefor, enacted in 1917. (Laws 1917, Ch. 32.) That statute provides for the review by this court on appeal of any judgment or order theretofore reviewable by proceedings in error, but without repealing, modifying or changing the statutory provisions for a review by that method. Section 15 of the Act declares that its provisions are intended to provide for a direct appeal as a separate and independent method of reviewing civil and criminal causes in the Supreme Court, in addition to the provisions of law for reviewing such causes on proceedings in error. The case has been heard on a motion to dismiss the appeal, based on two grounds: 1. That no notice of appeal was filed or served within ten days from the entry of the judgment appealed from, as required by the statute. 2. That appellant did not serve upon the respondents or either of their attorneys the specifications of error within ten days after the record on appeal was prepared and filed.

The statute provides, in Section 2, that an appeal may be taken by serving a notice in writing to such effect, signed by the appellant or his attorney, upon the opposing party or his attorney, "within ten days from the entry of the order or judgment appealed from," and that said notice of appeal shall be filed with the clerk of the District Court "where the order or judgment appealed from is entered, within said ten days." The appeal was taken by the plaintiff in the court below who is here known as the appellant, the statute providing (Sec. 3) that the party taking the appeal shall be known as the appellant, and the adverse party as the respondent, but that the order of the title of the action shall not be changed. The contention of respondents as to the notice of appeal is that it was served and filed prior to the entry of the judgment appealed from and therefore prematurely.

It appears from the record on the appeal that there was a jury trial of the cause on June 14, 1917, resulting in a directed verdict for the defendants on that day, and that the notice of appeal was filed and served on June 23, 1917; the notice stating that the plaintiff desires to and will appeal to the Supreme Court from the order and judgment entered in said cause in favor of the defendants and against the plaintiff on the 14th day of June, 1917, and from the whole thereof. The fact of the trial and the verdict, and that the latter was directed by the court, is shown in the record by a transcript of the journal entry thereof under the date "Thursday, June 14, 1917." The record does not contain a transcript of the journal entry of the judgment, but immediately following the entry aforesaid showing the trial and verdict is a paper entitled "Judgment," under the title of the cause, and signed by the judge who presided at the trial, which recites the fact of the trial and verdict, and concludes with a form of judgment upon the verdict in favor of the defendants, ordering and adjudging that the plaintiff take nothing by his action and that the defendants recover costs. It is dated as follows: "Done in open court the 14th day of June, 1917." And it is endorsed by the clerk of the District Court as filed on July 14, 1917.

The date or time of the entry of the judgment on the journal or whether it was ever so entered is not shown by the record. But attached to the motion to dismiss is an affidavit of the clerk to the effect that the judgment was actually filed for record in his office on July 14, 1917, and that it was entered and recorded in the records of the clerk's office some time between that date and July 16 1917. And attached to appellant's brief in opposition to the motion is an affidavit of appellant's counsel to the effect that the civil appearance docket in the clerk's office shows the date of the entry of judgment, under the heading, "Date 1917," as follows: "June 13. To Judgment 3-7-639." Respondents, at the time of or prior to the hearing on the motion filed another affidavit of the clerk explaining in effect that the date "June 13" on said appearance docket was an error, and should have been "July 14," the actual date of filing the judgment, and that the notation...

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2 cases
  • Hahn v. Citizens State Bank
    • United States
    • Wyoming Supreme Court
    • May 16, 1918
    ...CITIZENS STATE BANK, ET AL No. 922Supreme Court of WyomingMay 16, 1918 25 Wyo. 467 at 485. Original Opinion of April 1, 1918, Reported at: 25 Wyo. 467. Petition for rehearing POTTER, CHIEF JUSTICE. BEARD, J., and BLYDENBURGH, J., concur. OPINION ON PETITION FOR REHEARING. POTTER, CHIEF JUST......
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    • United States
    • Wyoming Supreme Court
    • April 1, 1918
    ... ... violation of the State Constitution (Art. XVI, Section 6), ... and is therefore void; the tax ... ...

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