Holliday v. Bundy, 1616

• Decision Date: 02 July 1930
• Docket Number: 1616
• Citation: 42 Wyo. 61,289 P. 1094
• Parties: W. H. HOLLIDAY v. BUNDY, ET AL. [*]
• Court: Wyoming Supreme Court

289 P. 1094

42 Wyo. 61

W. H. HOLLIDAY v. BUNDY, ET AL. ^[*]

No. 1616

Supreme Court of Wyoming

July 2, 1930

APPEAL from District Court, Albany County, VOLNEY J. TIDBALL, Judge.

Action by the W. H. Holliday Company against F. A. Bundy and The National Surety Company. From the judgment, the National Surety Company appeals.

Appeal dismissed.

For the plaintiff and respondent there was a brief by Corthell McCollough & Corthell, of Laramie, Wyoming, and oral argument by Mr. A. W. McCollough.

For the appellant there was a brief and oral argument by James A Greenwood, of Cheyenne, Wyoming.

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

OPINION

RINER, Justice.

An examination of the record in this case, brought here by direct appeal, compels us to mention certain vital matters which go directly to the power of this court to entertain the proceeding, though they have not been drawn to our attention by counsel.

First the record does not show by the certificate of the Clerk of the District Court of Albany County, the proper custodian of the journal of that court, that any judgment was ever entered thereon in the cause. There is a statement in the record that on September 26, 1929--one of the regular days of the September term of the Albany County District Court--"the following, among other proceedings, were had in said District Court, to-wit:", and there is then set forth a form of judgment signed by the district judge, which bears a filing mark of the clerk. There is on this form of judgment, at the foot of the first page thereof, in some person's hand writing, also the statement "entered in Dist Court Record "W" page 288." But neither of these statements has attached to it the signature of the clerk or any signature whatsoever. In brief, no transcript of journal entries of the judgment, duly certified by the proper officer, appears anywhere in the record.

It has been repeatedly decided by this court concerning the procedure by direct appeal that to establish our jurisdiction to consider a cause brought here by that method, the fact of the entry of the judgment appealed from, as distinguished from the rendition or making thereof, and the date of the entry, shall be shown by the record. See Goodrich v. Bank, 26 Wyo. 42, 44, 174 P. 191; Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, 894, 172 P. 705.

In Faulkner v. Faulkner, 27 Wyo. 62, 191 P. 1068, 1069, referring to the two cases last mentioned, it was said:

"The record in the present case, like those in the cases cited, contains no journal entry of the judgment or decree, but simply a form of decree signed by the judge, without any transcript of the journal showing that it was ever entered, or, if a decree was in fact entered, when it was entered, or what it was. Even if the record in the present case had been properly certified so that it could be considered by this court, the fact that it contains no transcript of any journal entry showing the entry of any judgment or decree, requires the dismissal of the appeal. Following the decisions in the cases above cited, the appeal is dismissed."

These rulings were again followed in Barnett v. Finance Association, 38 Wyo. 511, 268 P. 1025, where the following language was used:

"If the entry of record is actually shown, the date may be presumed to be that of the rendition, or the date which it bears. Coffee v. Harris, 27 Wyo. 394, 197 P. 649; Thomas v. Bivin, 32 Wyo. 478, 235 P. 321. But as already stated, there is nothing in the record on appeal before us showing that the paper purporting to be a judgment was ever actually entered of record. The motion to dismiss must accordingly be sustained."

Again, Section 6406, Compiled Statutes of Wyoming 1920, relating to the record on appeal, requires the clerk of the District Court to prepare a "record on appeal which shall consist of" certain specified papers and documents, embracing also "certified copies of the journal entries, including the entry of the judgment or order appealed from," all of which must be "securely attached together in their chronological order." The statute then declares: "When so prepared the whole of such record shall be paged and numbered consecutively and shall be certified to by the clerk of the District Court as true and correct and filed in his office." (Italics are ours.)

In the record at bar there appear neither any certified copies of the journal entries nor any certified copy of the judgment appealed from. It is true that the certificate of the clerk near the end of the record states that it includes "certified copies of the journal entries," but the fact is otherwise.

Following prior decisions of this court, the case of Scott et al. v. Rock Products Co., 37 Wyo. 527, 264 P. 86, held first that the filing of the record on appeal in the District Court within the time allowed by the Statute of Wyoming 1920, Section 6404, was necessary to give this court jurisdiction on appeal. The second and third syllabi preceding the opinion in that case outline succinctly the other points covered by it, and are as follows:

"2. Where record shows that record on appeal which, under Comp St. 1920, Sec. 6406, includes certified copies of journal entries, was not filed with the clerk of the District Court for more than 70 days after entry of order appealed...