Kabell v. Kabell

• Decision Date: 30 December 1930
• Docket Number: 1682
• Citation: 294 P. 695,42 Wyo. 360
• Parties: KABELL v. KABELL
• Court: Wyoming Supreme Court

294 P. 695

42 Wyo. 360

KABELL v. KABELL

No. 1682

Supreme Court of Wyoming

December 30, 1930

APPEAL from District Court, Uinta County; JOHN R. ARNOLD, Judge.

Action by Ernestine Kabell against Louis Kabell, Jr. Judgment for plaintiff, and defendant appeals. Heard on motion to dismiss.

Appeal Dismissed.

For the plaintiff there was a brief and oral argument by M. A. Kline of Cheyenne, Wyoming.

The appeal should be dismissed for delay in filing the record in this court. Samuelson v. Tribune Pub. Co., 41 Wyo 487. There was an unwarranted and inexcusable delay on the part of appellant in filing the record on appeal in this court after the negotiations for settlement, were concluded even if we could concede that such negotiations pending, were a sufficient excuse for failure to comply with the provisions of the statute. The appeal record itself contains about sixty pages of briefs, filed in the lower court, and numerous other papers that have no proper place in an appeal record.

For the defendant and appellant there was a brief and oral argument by Louis Kabell, Jr., of Evanston, Wyoming, pro se.

Appellate courts will order payment of alimony pending appeal only where the demands of justice make it clearly essential. 19 C J. 210; Gust v. Gust, (Wash.) 124 P. 504. Alimony and attorney fees should not be allowed in this case. Plaintiff and her counsel by their conduct waived all right to object to delay in filing the appeal record. It was not held in the Samuelson case that failure to file the record forthwith, was jurisdictional. The delay here was as much the fault of the plaintiff and her attorney as it was of the defendant. If delay in filing the record is not jurisdictional, it is a defect which may be excused or waived. In the absence of laches, it would seem just to allow the same time for filing an appeal record, as is allowed for the filing of a bill of exceptions on error proceedings, since nothing in the appeal statute shall be construed as changing existing laws relating to proceedings in error. 6415 C. S.; Rankin v. Schofield, 70 Ark. 197, 3 C. J. 1244-1246; Burlingame v. Bartlett, (Mass.) 37 N.E. 742; Sullivan v. Roche, (Mass.) 153 N.E. 549. Moreover, the record shows that respondent waived the delay in filing the appeal record by her words and acts. In re Brady's Estate, (Minn.) 73 N.W. 145-70; Craddock v. Barnes, (N. C.) 53 S.E. 239; Ball v. Schwenk, (Pa.) 16 C. O. Ct. R. 222. The delay in filing appeal record not being jurisdictional, and there being ample excuse shown therefor, the motion to dismiss should be denied; likewise, respondent's application for counsel fees and alimony should be denied.

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

OPINION

RINER, Justice.

This case is undertaken to be brought here by direct appeal from an order made by the District Court of Uinta County on May 7, 1930. The record prepared for use on the appeal was filed in that court on May 12, 1930. It was not filed in this court until September 22, 1930--a matter of 133 days later. Respondent has presented her motion to dismiss the appeal because of this delay in perfecting the proceeding. In support of the motion she submits the affidavit of the clerk of the District Court aforesaid, to the effect that the reason the record was not sent here by the clerk as the law directs, was that he was specifically requested by appellant not to forward the same until the latter instructed him so to do, and that appellant knew at all times from May 12, 1930 until on or about September 20, 1930 (the date it was forwarded by said clerk) that the record on appeal had not been transmitted to the clerk of this court for filing. This motion has been duly argued by counsel and submitted for our decision.

Appellant while conceding that the record was delayed in being filed here as stated above, and while conceding also that the affidavit of the clerk of the trial court correctly states the reason for such delay, insists that he was engaged in correspondence with counsel for respondent looking to a...