Kendrick v. Healey

Decision Date18 August 1919
Docket Number949
Citation26 Wyo. 261,183 P. 37
PartiesKENDRICK v. HEALEY
CourtWyoming Supreme Court

APPEAL from District Court, Johnson County; HON. JAMES H. BURGESS Judge.

Action by John B. Kendrick against Patrick Healey, Jr., and Alexander Healey, co-partners doing business under the firm of Healey Bros. Heard on plaintiff's motion to dismiss appeal and on defendant's to withdraw record for amendment.

Motion to dismiss denied.

Metz &amp Sackett and Robt. B. Rose, for respondent's motion to dismiss.

The record contains the files and not certified copies of the journal entries, and fails to show when, if ever, the orders verdict or judgment were entered on the journal. The certificate of the judge precedes that of the clerk. The record is not paged and numbered as required by statute; no order extending time for preparing or filing transcript testimony. The record on appeal differs from the transcript of testimony which must contain all the testimony, with the rulings of the court. The certificate of the reporter is insufficient. The sufficiency of instructions given or refused cannot be reviewed unless the entire testimony be certified. (Wood v. Wood, 25 Wyo. 26; 146 P. 844.) No specification of errors was served after the filing of the record on appeal. The record is clearly insufficient under the decisions of this court. (Hahn v. Bank, 171 P 889; Goodrich v. Bank, 123 P. 191, 177 P. 134.) The motion to dismiss should be sustained.

E. E. Enterline and Hill and Griggs, for appellants, opposing motion to dismiss.

The appeal record is clearly sufficient under the statute. The recitals with the certificate of the clerk show proper entry within the required time; the certificate of the clerk shows full compliance with the statute. An order extending the time for the filing of appeal record was duly given and made in the time and manner required by the statute. Appellants have moved for leave to withdraw record and to make amendments, showing that it was filed in the time required by order of extension. The certificate of the reporter that the transcript is a true and correct transcript of all testimony offered in trial with the rulings of the court, in admitting or excluding evidence and that all exhibits offered are attached thereto, is a literal compliance with Sec. 5 of the appeal statute. The distinction between filing and serving specifications of error is made clear by the decision in Hahn v. Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705. The objection as to paging and numbering the record is without merit. It is immaterial that the certificate of the judge is later than that of the clerk. The statute does not require pages containing certificate of judge or clerk to be numbered; the transcript of the testimony is clearly a part of the appeal record and is included in the order of extension.

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

OPINION

BLYDENBURGH, JUSTICE.

This case comes to this court by direct appeal under the provisions of Chapter 32, Session Laws of 1917, before it was amended by Chapter 15, Session Laws of 1919, and was heard on the motion of plaintiff and respondent to dismiss the appeal and the motion of defendants and appellants to withdraw the record on appeal for amendment.

The motion of plaintiff to dismiss, as drawn, purports to state 12 different grounds, but they may be summarized under the following heads:

That the notice of appeal was given prior to the date of the entry of the judgment.

That there is no certified copy of the journal entry of the judgment, verdict, &c., in the record and therefore no proof of when the judgment was entered, if at all.

That the transcript of the testimony was not filed within the time required by the statute, and no order was made extending the time.

That the certificate to the transcript of the testimony does not comply fully with the requirements of the statute.

That the certificate of the judge is dated prior to the certificates of the clerk, and therefore the judge does not certify to what is contained in the certificates of the clerk.

That the record on appeal is not paged and numbered consecutively as required by the statute.

That the specifications of error were served prior to the filing of the record on appeal.

As to the statement that the notice was served prior to the entry of judgment the record shows the contrary. The notice is dated November 28, 1917, the acceptance of service of the notice November 30, 1917, and the date of the entry of the judgment, according to the certificate of the clerk, was November 23, 1917.

As to the statement that there is no certified copy of the journal entry of the judgment in the record, this court, in the case of Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705, decided that the record on appeal must show the entry of a judgment on the journal of the court and the date thereof, and that the proper way to show this was by a certified copy of the journal entry, and that a form of judgment signed by the judge and filed with the clerk appearing in the record, when nothing appeared to show that it had been entered on the journal, was not sufficient to give this court jurisdiction of the case on appeal. As such a form of judgment signed by the trial judge appears in the record on appeal in this case, counsel for respondent argued that the cases are similar and that there is no showing here of the entry of the judgment in this case. While the original paper signed by the judge appears in the record of this case, it is preceded by the words, "And be it further remembered that thereafter on November 23, 1917, the following judgment was entered by the court which said judgment is as follows, to-wit: "And this paper has upon it the notations of the clerk that it was filed in District Court, 4th Judicial District, Johnson County, Wyoming, November 23, 1917. A. W. Kennedy, Clerk, and that it is entered on the Court Journal. In addition to this, the certificate of the clerk at the end of the record on appeal reads as follows:

"CERTIFICATE OF CLERK.

"STATE OF WYOMING, COUNTY OF JOHNSON.

"I, A. W. Kennedy, Clerk of the District Court of the Fourth Judicial District of the State of Wyoming, in and for the County of Johnson, do hereby certify that the above and foregoing record on appeal contains true copies of the order of the court, verdict of the jury and judgment, given, made, returned and entered in said cause as follows, to-wit: * * * Of the judgment entered November 23, 1917, filed November 23, 1917, and entered in Journal 4 at page 4, said copy of judgment being found on pages 51 and 52 of the Record on Appeal.

"IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Court this May 13, 1918.

"A. W. KENNEDY, Clerk of Court."

(SEAL)

This certificate shows as fully as possible that the identical paper is a true copy of the entry on the journal and the date of the entry, and could not show more completely what the entry really was if a separate copy had been used instead of the paper which was the original paper from which the entry was made. There is nothing in the statutes that requires certificates to certified copies to be attached or immediately follow the entry certified so long as the identity of the record is shown.

As to the ground that the transcript of the testimony was not filed within seventy days after the entry of the judgment, and no order was made and entered extending the time in which to make or file such transcript; it is admitted that the record does contain an order extending the time for preparing the record. This order appears in the record on appeal and shows that it was made in chambers by the trial judge on Jan. 15, 1918, and by the endorsement on the back that it was filed in the office of the clerk of the trial court on January 18, 1918, and entered on court journal No. 7, on page 13. Sections 4 and 5 of Chapter 32, S. L. 1917, provide:

"Section 4. The appellant shall be entitled as a matter of right to seventy days after the entry of the judgment or order appealed from within which to prepare and file with the Clerk of the District Court a record for the appeal, which time may be by the Court or the Judge thereof extended or enlarged for cause shown."

"Section 5. Whenever the party appealing desires to review the ruling of the District Court on the admission or exclusion of evidence, or questions the sufficiency of the evidence to sustain the verdict, finding, judgment, or decision, or alleges that the verdict, finding, judgment or decision is contrary to law, the party appealing shall cause to be prepared by the official court reporter a complete transcript of all the testimony offered at the trial, with each question consecutively numbered, and showing all rulings of the Court in admitting or excluding evidence, or in directing or refusing to direct a verdict for either party, which transcript of the testimony and rulings of the Court shall be certified to by the official court reporter as being true and correct, and as containing all of the testimony offered at the trial, with the rulings of the Court in admitting or excluding evidence, or in directing or refusing to direct a verdict for either party. When the record of the testimony offered at the trial, and the rulings of the court to be included herein, are prepared and certified as provided in this section, the same shall be filed with the Clerk of the District Court within seventy days from the date of the entry of the order or judgment appealed from, or within the time as extended by the Court or Judge."

It is also evident from Section 6 that the transcript of the testimony is a part of the record on appeal, and the extension of time mentioned...

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