Hanson v. C. B. & Q. R. R. Company
| Decision Date | 02 April 1923 |
| Docket Number | 1072 |
| Parties | HANSON v. C. B. & Q. R. R. COMPANY |
| Court | Wyoming Supreme Court |
APPEAL from District Court, Sheridan County; HON. H. P. ILSLEY Judge.
Action by Walter N. Hanson against the Chicago, Burlington & Quincy Railroad Company. From an adverse judgment, plaintiff appeals. Heard on motion to strike specifications of error and to dismiss appeal.
Motion to Dismiss Denied.
Goddard & Clark and Charles A. Kutcher, for the motion.
No service of specifications of error was made by appellant as required by statute (Secs. 6408-6409 C. S.) While perhaps not jurisdictional, the omission justifies a dismissal. (Hahn v. Bank, 25 Wyo. 467; McGinnis v. Beatty, 196 P. 311; Coffee v. Harris, 197 P. 649.) Under similar statutes in other states such failure is held to be a ground for dismissal.
Metz, Sackett & Metz and Devaney & Edwards and W. W. Patterson, contra.
A notice of appeal is an assignment of error, as to the sustaining of the motion for a directed verdict and the order granting a directed verdict; it could not be construed otherwise. An order directing a verdict is not an appealable order. (Hahn v. Bank, 25 Wyo. 467-480.) In many states it is required that the specifications be contained in the appeal notice. (3 C. J. 1228.) A paper is determined by its contents, not its title. (3 C. J. 1328.) Even if a notice did not sufficiently set forth the assignment of error as to the directed verdict, it is sufficiently supplemented by the specifications and brief of appellant. (3 C. J. 1399.) Error in directing a verdict may be reviewed without an assignment. (3 C. J. 1345.) Service of specifications of error was accepted after service of motion to dismiss, but, the specifications were actually served. There is no denial of service. Service at any time before the filing of the record is sufficient. Hahn v. Bank, supra; Coffee v. Harris, 197 P. 649, turned upon the failure to file appeal record. Other cases cited in support of the motion are not in point because they were decided under different statutes and relate to different circumstances. Failure to make such service is not jurisdictional. (Smith v. Wingard, 13 P. 903 (Wash.) .) The penalty for failure of service is within the discretion of the appellate court. (Sec. 6408 C. S. 1920.) The rule announced in Jones v. C., B. & Q. R. R. Co., 23 Wyo. 148, that a liberal construction of the petition in error would sufficiently challenge the order directing the verdict, is applicable to this case. (5686 C. S. 1920.) It is of especial application where the error appears on the face of the record. Sutherland Pl. & Prac. Sec. 1805; Neppach v. Jones, 28 Ore. 286; 2 Enc. Proc. 316; Unitarian Society v. Houliston, 105 N.W. 66; Proctor v. Jeffrey, 144 P. 1192; Fleischner v. Bank, 36 Ore. 553.) The record may be amended by attaching specifications of error. (Skinner v. Lewis, 62 P. 523; Medynski v. Theiss, 59 P. 871 (Ore.) ; Palmer v. Allen, 18 N. M. 237; Smith v. Duff, 102 P. 982 (Mont.) ; Woodruff v. Douglas Co. (Ore.) 21 P. 49; Cameron v. County, (Ore.) 41 P. 160.) No prejudice is shown.
Goddard & Clark and Charles A. Kutcher, in reply.
Four essential steps are required by the statute, i. e., notice of appeal; filing of the record; service and filing of specifications of error; and filing record in the Supreme Court. The statute with reference to specifications of error is clear. (6408 C. S. 1920.) It is not a question of prejudice, but of compliance with the statute. Some prejudice or disadvantage always follows a failure to comply with the statute. An extension of time is only granted on the showing of a good excuse. If a notice of appeal were sufficient to take the place of specifications of error the statute would have said so. The notice states that the appeal is from the whole judgment and it did not apprise respondent of the precise grounds for appeal. The notice and specifications of error are two separate steps, the latter having a distinct purpose. Error predicated on a directed verdict must be assigned. (3 C. J. 1338.) Hahn v. Bank, does not hold that specifications may be filed after the time fixed by statute. Such service is similar to the service of summons in a civil action, or in error, and if made out of time should be regarded as a nullity. (In re Big Laramie River, 23 Wyo. 75; Esselstyn v. Coal Co., 25 Wyo. 406.) The rule is similar to the rule limiting the time for filing a motion for new trial, which is mandatory. (Kent v. Upton, 3 Wyo. 43; McLaughlin v. Upton, 3 Wyo. 48; Boswell v. Bliler, 9 Wyo. 277; Casteel v. State, 9 Wyo. 267; Todd v. Peterson, 13 Wyo. 513.) The service is as essential as the filing, according to the statute. The authorities cited in opposition to the motion do not sustain respondent. An examination of them will show that they are based on different statutes and facts, from those involved in the present controversy. In support of the motion to dismiss we desire to submit the following additional authorities: (3 C. J. 1397; Pollock v. Johnson, 172 N.W. 62; Baskerville v. Thomas, 143 N.W. 371; San Pedro etc. v. Board, 99 P. 263; Collins v. City, 7 P. 857; Huber v. Fulking, 103 N.E. 853; State v. Freeman, 37 S.E. 206; Smith v. Smith, 25 S.E. 878; State v. Price, 15 S.E. 116.) Failure to file an assignment of error is ground for an affirmance of the judgment or decree, or for dismissal. (2 Pl. & Pr. 922.) The statute requires specifications of error to be served and filed, --one requirement being as important as the other.
Devaney & Edwards, W. W. Patterson, and Metz, Sackett & Metz, supplemental brief.
In the case of Baskerville v. Thomas, 143 N.W. 371, cited by respondent, the statute required errors to be specified in the brief, which differs from our statute. In this case the record shows the exceptions. The direct appeal statute prescribes no penalty of dismissal if the specifications are not made as required by statute. Palmer v. Allen, 18 N. M. 237, 135 P. 1173 is squarely in point in favor of appellant here. It is followed by three other New Mexico cases: (Armijo v. Abeytia, 5 N. M. 533, 25 P. 777; Sacramento Valley Irr. Co. v. Lee, (N. M.) 113 P. 834; Eagle Min. & Imp. Co. v. Lund (N. M.) 113 P. 840.) All of the cases cited by respondent are distinguishable from the case at bar.
This cause is here on direct appeal for the review of a judgment of the District Court in Sheridan County, and it has been heard upon a motion filed in this court by the respondent to strike the appellant's specifications of error from the "files" and to dismiss the appeal. The ground stated in the motion is that the appellant has wholly failed to serve upon the respondent or either of his attorneys in the cause the specifications of error or a copy thereof, and attached to said motion are affidavits of the attorneys named as having represented the respondent in the District Court, each to the effect that there had been no service of the specifications of error or a copy thereof upon the affiant; one of said affidavits appearing to have been subscribed and sworn to on the 1st and the other on the 5th day of December, 1921. Attached also to the motion as filed in this court appears a notice signed by respondent's said attorneys, directed to the appellant and his attorneys, to the effect that on the 13th of December, 1921, "or as soon thereafter as counsel can be heard," there will be presented to the Supreme Court by the respondent a motion to dismiss the appeal, and calling attention to the motion attached thereto, with the supporting affidavits aforesaid. Service of that motion was acknowledged and accepted on December 5, 1921, by a written endorsement thereon signed by the appellant's attorneys. The motion, with said attached notice, acceptance of service and supporting affidavits, was then filed in this court on December 7, 1921.
It further appears from a paper filed in this court on December 12, 1921, entitled "Acceptance of Service of Specifications of Error," that on December 6, 1921, service of copy of specifications of error was accepted in writing by respondent's attorneys; the date of such acceptance of service having been, as may be noticed, one day after the service of the notice of respondent's motion to dismiss and one day before said motion was filed in this court. The record as prepared and filed in the District Court was transmitted to this court and filed here on October 12, 1921, and contains, attached thereto as required by statute, specifications of error duly and separately authenticated by the clerk of the District Court, showing the filing thereof in said clerk's office on August 24, 1921, which was two days after the record was filed in said office, and, therefore, within the time provided by statute; said record appearing, by proper indorsement thereon, to have been filed in the office of the clerk of the District Court on August 22, 1921. It further appears that the required number of copies of the brief of appellant was filed in this court on October 20, 1921, together with a written acknowledgment of service of said brief upon respondent's attorneys dated October 18, 1921.
The procedure for bringing a cause to this court by so-called direct appeal for the review of a judgment or final order of a District Court is prescribed by statute substantially as follows, referring to Chapter 32, Laws of 1917, Chapter 15 Laws of 1919, Chapter 392, Compiled Statutes of 1920: The appeal must be taken by serving a...
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