In the Matter of Greybull Valley Irrigation District

• Decision Date: 19 November 1935
• Docket Number: 1964
• Citation: 48 Wyo. 523,52 P.2d 410
• Parties: IN THE MATTER OF THE GREYBULL VALLEY IRRIGATION DISTRICT, DONOVAN, ET AL. v. OWEN, ET AL
• Court: Wyoming Supreme Court

52 P.2d 410

48 Wyo. 523

IN THE MATTER OF THE GREYBULL VALLEY IRRIGATION DISTRICT, DONOVAN, ET AL. v. OWEN, ET AL

No. 1964

Supreme Court of Wyoming

November 19, 1935

APPEAL from the District Court, Big Horn County; C. D. MURANE Judge.

Certain owners of land in the Greybull Valley Irrigation District petitioned for an order for revision, modification and change of orders previously made, relating to said district. From an order granting the prayer of said petition, certain objectors appealed. Heard on motion to dismiss and on motion to shorten the time for filing briefs.

Motion to dismiss denied. Motion to shorten time for briefs granted.

In support of the motions, there was a brief and oral argument by Ernest J. Goppert, of Cody.

Under the law, appellants' appeal must have been filed and docketed in this court within thirty (30) days after the entry of the order appealed from in the district court, or within the time if extended by the district court. Sec 122-742, R. S.; Berry v. Sample, 28 Wyo. 272; Peterson v. Spaugh, 31 Wyo. 26; Scott v. Rock Products Company, 37 Wyo. 527; State v. Genero, 39 Wyo. 325; Electrolytic Copper Company v. Board of Com'rs. of Albany County, 42 Wyo. 67. Appellants have admitted in their motion for an extension of time, that the time for appeal in an action of this kind is governed by the provisions of Sec. 122-742, R. S., which shortens the time of appeal stated in the direct appeal statute from seventy days to thirty days. The principle has been recognized in the following Workmen's Compensation cases In re Contas, 42 Wyo. 59; Marsh v. Aljoe, 43 Wyo. 347. In the Contas case, this court quoted with approval from State v. Amsberry, (Nebr.) 177 N.W 179, where a similar statute was involved. The time fixed by the trial court in the order of August 17, 1935, which was entered on August 24, 1935, expired on September 26, 1935, if computed from the date of signing said order; and if computed from the date of the entry thereof, the time for appellants' appeal expired not later than October 3, 1935, which was one day prior to the filing of the record on appeal in the court below. Our statute provides that in the computation of time, within which an act is required by law to be done, the first day shall be excluded and the last day shall be included, but if the last day be Sunday, it shall be excluded. Sec. 89-105, R. S. This statute has been construed in the following cases: Peterson v. Spaugh, 31 Wyo. 26; Daley v. Anderson, 7 Wyo. 1; White v. Hinton, 3 Wyo. 754; David v. Whitehead, 13 Wyo. 189; Mining Company v. Milling and Smelting Company, 13 Wyo. 244. The failure of appellants to file and docket their record on appeal in this court by October 3, 1935, entitles respondent to an order dismissing this appeal. Respondent states that section 122-742, R. S., requires the docketing of the appeal in the Supreme Court within the thirty (30) day period or a proper extension thereof. The affidavit prepared by appellants for the official court reporter under date of August 17, 1935, states that the statute gives him (the reporter) approximately three (3) days in which to prepare his record on appeal and submit it to the Supreme Court of the State of Wyoming. So appellants' failure to file their record on appeal in either the district court of Big Horn County, or in this court, on or before October 3, 1935, requires the dismissal of the appeal. Peterson v. Spaugh, supra. The record shows that appellants have admitted that the time for filing their appeal is governed by section 122-742, R. S., fixing the time for appeal at thirty (30) days. Appellants having obtained an extension of said time by order entered August 24, 1935, giving them forty (40) days additional time to file their appeal, and having wholly failed to file their appeal within said extended time, respondents are entitled to an order dismissing said appeal.

In opposition to the motions, there were oral arguments by Milward L. Simpson, of Cody, and Harry B. Henderson, of Cheyenne, who filed no briefs.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

Some forty or more owners of lands in the Greybull Valley Irrigation District appeal from an order entered July 30, 1935, granting the prayer of a petition of the district "for revision, modification and change of orders" previously made. We understand that the order appealed from makes such changes in former orders as were deemed necessary to authorize the district to obtain by loan and grant from the United States $ 1,108,000, for the construction of irrigation works for the benefit of lands in the district, and to fix the terms of repayment of $ 845,000 of the amount from assessments against the lands.

The case has been heard on two motions filed by respondent--one to dismiss the appeal, the other to shorten the time for the filing of briefs.

First, as to the motion to dismiss. Respondent does not claim that the order of July 30 is not a final order within the statutory definition. R. S. 1931, § 89-4801. The appeal has been taken and perfected in strict accordance with the statutes which provide generally for direct appeal to this court from a final order of the district court. R. S. 1931, ch. 89, art. 49. The notice of appeal was served and filed August 7, within 10 days from the entry of the order (§ 89-4902); the record was filed in the district court on October 4, within 70 days after the entry of the order (§ 89-4904); the specifications of error were served October 12 and filed October 14, within 10 days after the filing of the record (§ 89-4908), and the record was filed in this court October 26, less than 60 days after it was filed in the district court (§ 89-4910, Rule 35, 42 Wyo. 511, 539).

The respondent, however, contends that the time for perfecting the appeal is shortened by section 122-742, a part of the law in regard to irrigation districts. This section provides that the order confirming the assessments of benefits shall be conclusive as to the regularity of all proceedings relating to the assessment of benefits "unless appealed from within 30 days after the entry of such order." There may be some doubt that the order appealed from is an "order confirming the assessment of benefits." We understand that respondent contends that it is not, and claims that the order confirming the assessment of benefits was entered some 14 years ago. The appellants, however, seem to claim or admit that the order in question is one of those orders affected by the thirty-day limitation, and we shall assume that to be so. A similar limitation is found in other parts of the irrigation district statutes. Section 122-710 provides that certain "findings and orders of the court * * * shall be final and conclusive unless appealed from to the Supreme Court within thirty days after filing thereof." Section 122-720 provides that the order of confirmation of the report of the commissioners "shall be final and conclusive * * * unless within thirty days an appeal be taken to the Supreme Court." Section 122-750 provides that the order confirming certain other proceedings shall be conclusive as to the regularity thereof unless appealed from within 30 days. These sections, as well as section 122-742, supra, merely fix the time within which an appeal may be taken. An appeal under the direct appeal statute is "taken" by serving and filing the notice of appeal. The statute (R. S. 89-4902) so declares, and that is the general rule under appeal statutes that provide for such a notice. See Miller v. New York Oil Co., 32 Wyo. 483, 488, 235 P. 323. In 2 Enc. P. & P. 237 it is said that an "appeal is taken when a legal condition is performed which terminates the running of the statute limiting the time for taking it. * * * Under code practice an appeal is taken by serving and filing the notice of appeal." And see 2 Hayne on New Trial and Appeal, § 206; Saverance v. Lockhart, 66 S.C. 539, 45 S.E. 83. When an appeal is taken by serving and filing the notice of appeal, the performance of other acts necessary to lodge the record in this court are usually called the "perfecting of the appeal." Elliot on App. Proc. § 245. See Coffee v. Harris, 27 Wyo. 394, 398, 197 P. 649; R. S. Wyo. 1931, § 89-4912. State ex rel. Ayres v. Amsberry (on hearing), 104 Neb. 273, 178 N.W. 822, cited by respondent, is not in point, as under the Nebraska statute (R. S. 1913, § 8186) an appeal is taken by filing in the Supreme Court a transcript of the judgment or order appealed from.

We think an order made in proceedings under our irrigation district statutes is "appealed from" within the meaning of section 122-742, when the appeal is taken. Respondent's contention that the statutes mean that the appeal must be perfected by filing the record in this court within the 30-day period finds no support in the language of the law. Nor can we see any reason for supposing that the legislature would intend to fix such a short period for perfecting an appeal, without any provision for extending the time, when the procedure under the general direct appeal statute, which must be followed in perfecting the appeal, allows the appellant as a matter of right a total of more than 100 days for that purpose, and also permits extensions of the time. Certainly, an intention to shorten the time to 30 days would have been expressed in plain language. In another law, the Workmen's Compensation Act frequently before this court, the legislature did at first require that the record on appeal be filed in the Supreme Court within 30 days. ...