In re Big Laramie River

• Decision Date: 24 March 1915
• Docket Number: 781
• Citation: 147 P. 169,23 Wyo. 75
• Parties: IN RE. BIG LARAMIE RIVER, PIONEER CANAL COMPANY, ET AL., v. AKIN, ET AL. [*]
• Court: Wyoming Supreme Court

147 P. 169

23 Wyo. 75

IN RE. BIG LARAMIE RIVER, PIONEER CANAL COMPANY, ET AL., v. AKIN, ET AL. ^[*]

No. 781

Supreme Court of Wyoming

March 24, 1915

ERROR to the District Court of Laramie County, RODERICK N. MATSON Judge.

Wyoming Development Company, one of the defendants in error, moved to quash the service of summons in error and to dismiss the proceedings in error on the ground that the proceedings in error were not commenced within one year after the rendition of the judgment complained of and that the summons in error itself had expired by operation of law before it was served.

Proceedings Dismissed as to Wyoming Development Company.

Clark &amp Clark, for the motions.

The return shows service of the summons in error more than six months after its date and more than one year and six months after the entry of the order overruling the motion for a new trial. The proceedings in error were not commenced within the statutory period. (Comp. Stats. 1910, Sections 5122, 5111, 4305 and 4306; Lobell v. Stock Oil Co., 19 Wyo. 170; Caldwell v. State, 12 Wyo. 206; Baltimore &c R. Co. v. Ambach, 55 O. St. 553; Bechthold v. Fisher, 12 Oh. C. C. 559.) The statute limiting the time within which an appeal must be taken is jurisdictional. (Bowen v. Bowen, 36 Oh. St. 312.) Comp. Stats. 1910, Sections 4305 and 4306, while not referring directly to appellate proceedings, may be resorted to to supply defects in appellate procedure.

N. E. Corthell, contra.

The motions seem to be based upon a confusion of two distinct provisions of the Code designed to apply to different conditions. Section 4351 defines what constitutes commencement of an action and Section 4305 to the date of filing an issuance of the writ. Where there is a failure of service under the original writ Section 4306 makes the attempt to commence, which would otherwise be abortive, equivalent to the actual commencement of the action, if an alias writ is served within sixty days after the previous attempt and failure. In Lobell v. Stock Oil Company, 19 Wyo. 170, there was neither commencement or an attempt to commence the proceeding; in Caldwell v. State, 12 Wyo. 206, there was an attempt to commence the proceeding but it was abortive and was not followed within sixty days with new process or actual service. Where the writ is issued within the year and actually served, although after the expiration of the year the service relates to the date of the writ. (2 Cyc. 805; Caldwell v. State, 12 Wyo. 206; McDonald v. Ketcham, 53 Oh. St. 519, 42 N.E. 322; Rogers v. Redick & Conwell, 10 Neb. 222, 6 N.W. 413; Leavitt v. Brazelton, 28 Tex. Civ. App. 3, 66 S.W. 465; Buelterman v. Meyer, 132 Mo. 470, 34 S.W. 67, 68.) Section 4306 is not intended to curtail the time within which a summons may be served. This is regulated by Section 4359 and if this section be applicable by analogy to proceedings in error, there is warrant for the proceedings in this case in Section 4351 defining the commencement of an action, Section 4305 declaring the date of the summons to be the date of commencement and Section 4359 providing that service may be made at any time before the return day. The previous decisions of this court deal with a condition, where no summons was issued within the year, or where an attempt to commence proceedings failed and was not followed with new process and actual service within sixty days. Therefore the decisions cited are not in point. The same is true of the Ohio decisions referred to. In McDonald v. Ketcham, 53 Oh. St. 519, the doctrine of Bowen v. Bowen was overruled. (See, also, Bemis v. Pittsburgh, &c., Railway Co., 7 O. N. P. 515, 516, 517.) The word "attempt" is obviously used in our statute in the common sense defined by the authorities meaning in a general way a putting forth of effort, especially an unsuccessful effort to attain an end. (Webster's New Int. Dict.; Standard Dict.; Century Dict.; Graham v. People, 181 Ill. 477, 55 N.E. 181.) It is obvious that the Legislature in the enactment of Section 4306 had in mind an original action and not a proceeding in error. Upon the authority of the cases in our own court, the courts of Ohio and the general current of opinion, illustrated by the foregoing citations, it is submitted that the motions should be denied.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

This case is before the court at this time on two motions of Wyoming Development Company, one of the defendants in error one to quash the service of summons in error, and the other to dismiss the proceedings in error. Both motions present the same ultimate questions, viz: was the proceeding in error commenced in due time? The Statute, Section 5122, Comp. Stat. 1910, so far as applicable here, reads as follows: "No proceeding to reverse, vacate, or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of." In this case there is no dispute as to the date the statute commenced to run, that date being January 6, 1913. The petition in error was filed January 3, 1914, and summons in error was issued the same day and made returnable on or before August 1, 1914, and was served on said defendant in error July 22, 1914. Counsel for the moving defendant in error contend that to constitute the commencement of the proceedings the summons must not only be issued within the year but must, also, be served within sixty days from the date of the original summons. In support of that contention they cite Section 4305, Comp. Stat. 1910, contained in the chapter of the statutes relating to the time of commencing actions, which provides: "An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served upon him," etc. Also Section 4306, Id.: "An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days." They argue that those provisions should be held to apply, by analogy, to proceedings in error; and as the service in this case was not made until July 22, 1914, and more than sixty days after the date of the summons, the proceedings were not commenced in time. The provisions of the statutes which apply to the procedure in civil actions can be resorted to in proceedings in error, where the statute on proceedings in error is lacking in some particular, in which case it has been held that the former may be applied by analogy where applicable. The chapter of the statutes on jurisdiction and procedure in error, Section 5111, reads as follows: "The proceedings to obtain such reversal, vacation, or modification, shall be by petition in error, filed in a court having power to make the reversal, vacation or modification, and setting forth the errors complained of; thereupon a summons shall issue and be served, or publication made, as in the commencement of an action, and a service on the attorney of record in the original case shall be sufficient; the summons shall contain a statement that a petition in error has been filed in the case; and if issued in vacation, it shall be returnable on or before the first day of the term of the court, and if issued in term time, it shall be returnable on a day therein named; and if the last publication, or service of the summons, be made ten days before the end of the term, the case shall stand for hearing at that term." Here we have a statute providing for the issuance of summons, prescribing what it shall contain, when it shall be returnable, and on whom it may be served; but it does not fix any definite length of time after its issuance within which it may be served to perfect the commencement of the proceedings so as to give the court jurisdiction. The return day is not the same...