Iven v. Jessup
| Decision Date | 15 March 1912 |
| Docket Number | 663 |
| Citation | 121 P. 1001,20 Wyo. 90 |
| Parties | IVEN v. JESSUP |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Carbon County.
Heard on motion to dismiss.
N. R Greenfield, for plaintiff in error.
McMicken & Blydenburgh, for defendant in error.
The petition in error in this case was filed January 21, 1911 and sought the reversal of a judgment of the district court in Carbon County rendered November 23, 1910, The case came on regularly for hearing in this court on February 26, 1912, and thereupon a motion of the defendant in error filed on that day to dismiss the proceeding in error was presented and heard, and dismissal was ordered upon such motion; the conclusion of the court being stated orally with the understanding that the written opinion would be subsequently filed. The motion was made upon the ground that there is nothing in this court to show any judgment or any errors of the court below, no record or transcript thereof having been filed, nor any application by the plaintiff in error for an order directing the clerk of the district court to transmit such record or original papers.
The statute provides that the plaintiff in error shall file with his petition in error an application for an order directing the clerk of the district court or other tribunal from which the appeal is taken to transmit to the supreme court all such original papers in the case in which the appeal is taken and a duly authenticated transcript of all such journal entries or other entries of record as he may desire and as may be necessary to exhibit the errors complained of; and upon the filing of such application it shall be the duty of the clerk of the supreme court to forthwith issue said order, under the seal of said supreme court. (Comp. Stat. 1910, sec. 5114.) The same section provides for serving said order for the record upon the clerk of the district court or other tribunal from which the appeal is taken, and requires the said clerk upon the receipt of such order to forthwith deliver the papers and transcript called for by the order to the clerk of the supreme court, taking his receipt therefor; and it is declared that "such original papers and authenticated transcript shall be and become a part of the record in the case in the supreme court, and upon the conclusion of said case in the supreme court said papers shall be returned with the mandate of the supreme court to the court or tribunal from which the appeal was taken." Section 5122 provides that 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; but upon a sufficient showing being made the party desiring to institute the proceeding may be granted by the court rendering the judgment a reasonable extension of time not exceeding eighteen months within which to institute the proceeding.
In Conradt v. Lepper, 13 Wyo. 99, 78 P. 1, it was held that a proceeding in error commenced within one year from the order overruling a motion for new trial seasonably filed is commenced in time to authorize the review of alleged errors properly involved in a determination of such motion. There is no showing in this case that would bring it within the provision for an extension of time or the rule announced in Conradt v. Lepper. At the time the motion was made and heard, therefore, the time for commencing the proceeding in error had expired, and it appears that the plaintiff in error did not file with his petition in error or at any other time an application for an order for the original papers or record entries as required by section 5114.
In Caldwell v. State, 12 Wyo. 206, 74 P. 496, it was held that where there has been no appearance by the proper parties, nor a waiver of summons in error, a proceeding in error is not commenced in this court, within the meaning of the statute limiting the time for bringing such a proceeding unless summons in error is issued and...
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Fryer v. Campbell
...error is filed within one year from rendition of judgment, the court does not acquire jurisdiction. Burnett v. Giblin, 38 Wyo. 421; Iven v. Jessup, 20 Wyo. 90; Court rule 37; 4 C. J. 399; Atchison v. Conlon (Kans.) 94 P. 148; Beels v. Investment Company (Nebr.) 141 N.W. 812. Noncompliance w......
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Marsh v. Aljoe
...in time, and deprives the court of jurisdiction. Krivokapich v. Coal Co., 41 Wyo. 9; Reintsma v. Standard Oil Co., 37 Wyo. 471; Iven v. Jessup, 20 Wyo. 90, 6376 C. S. Where a of exceptions is presented more than one hundred twenty days after the final order, it must be stricken. Jones v. Pa......
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Megown v. Fuller
...been filed by the plaintiff in error and no summons issued within the time allowed for the commencement of proceedings in error. In Iven v. Jessup, supra, it was held that the plaintiff in error was required by the statute to file with his petition in error an application for an order for t......
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Reintsma v. Standard Oil Co. of Indiana
...is jurisdictional in its nature. The time can not be enlarged by the court nor by the agreement of the parties." See also Iven v. Jessup, 20 Wyo. 90, 121 P. 1001; Lobell v. Stock Oil Company, 19 Wyo. 170, 115 P. In view of what has been said, it is unnecessary to consider the effect of the ......