Lobell v. Stock Oil Company, 668

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBEARD, CHIEF JUSTICE.
Citation19 Wyo. 170,115 P. 69
Decision Date25 April 1911
Docket Number668
PartiesLOBELL v. STOCK OIL COMPANY

115 P. 69

19 Wyo. 170

LOBELL
v.
STOCK OIL COMPANY

No. 668

Supreme Court of Wyoming

April 25, 1911


ERROR to District Court, Natrona County.

Heard on motion to dismiss.

Motion to dismiss granted and proceedings in error dismissed.

Norton & Hagens, for defendants in error. (On motion to dismiss.)

Every act required to perfect an appeal must be completed during the statutory time allowed for taking the appeal, viz: filing the petition in error, precipe for summons in error, and application for an order for the original papers and transcript; and the summons must be served and returned and the transcript filed within this time, or the case should be dismissed for want of jurisdiction. (Green v. City, 87 F. 839; City v. Coler, 92 F. 284; Cody v. Filley, 4 Colo. 436; Moe v. Harger, (Ida.) 77 P. 645; Wright v. Manns, (Ind.) 12 N.E. 160; Young v. Moss, 4 Ky. L. R. 449; Wood v. Calloway, 21 La. Ann. 481; R. R. Co. v. Ambach, 55 O. St. 553; Snider v. Young, 72 O. St. 494; Lott v. Ry. Co., 4 O. C. D. 9; Barton v. Bank, 14 O. Cir. 450; Wedd v. Gates, (Okl.) 82 P. 808.) The authorities are uniform to the effect that two appeals in the same case between the same parties cannot be pending in the same court at the same time, and that in such event the last appeal should be dismissied. (American &c. Co. v. Perrine, (Fla.) 24 So. 484; DaCosta v. Dibble, (Fla.) 33 So. 466; Newbury v. Getchell &c. Co., (Ia.) 76 N.W. 514; Swortfiguer v. White, (Cal.) 66 P. 80; Rowland v. Fite, (Ga.) 34 S.E. 212; Dunbar v. T. & T. Co., (Ill.) 72 N.E. 904; Burdett v. Dale, (Mo.) 69 S.W. 480; Smith v. Flick, (Mo.) 83 S.W. 73; Kehler v. Walls, (Mo.) 94 S.W. 760; Dunlap v. Weber &c. Co., (Mo.) 94 S.W. 761; Collins v. Gladiator &c. Co., (S. D.) 103 N.W. 385.) When an order of dismissal is entered in the Supreme Court it operates as a decree of affirmance, which cannot be opened by a new proceeding. (Horton v. Peacock, 1 Wyo. 57.)

William H. Martz and Frederick J. Lobell, of Chicago, Ill., for plaintiff in error, contra.

The first ground of the motion, viz: that the proceeding in error was not commenced within one year after the rendition of the judgment cannot be maintained. The judgment was entered January 28, 1910, and the petition in error was filed January 25, 1911, within the year allowed for commencing the proceeding in error. With reference to the second ground of the motion, to-wit: that none of the original papers or journal entries have been transmitted to this court, the files and records in the office of the clerk of this court will show the filing of a motion on January 25, 1911, for an order for all the necessary papers and transcript. It is no part of the duty of the plaintiff in error to file the record in this court, for it is made the duty of the clerk of the district court to transmit upon the order issued. If the clerk fails to do that the plaintiff in error is not chargeable with his neglect. The statute does not fix a time in which the precipe for summons in error must be filed or in which the summons must issue. It must be admitted that this court upon its own motion, or upon the motion of the defendant in error, may rule the plaintiff in error to file his precipe and cause the summons to issue, in order to speed the case. Plaintiff in error has now filed his precipe for summons and does now offer to cause summons to be issued thereon. We contend that this question cannot be raised by the defendant in error upon this motion to dismiss, but that the same must be raised by a motion to compel the plaintiff in error to file his precipe and cause summons to be issued. The jurisdiction of this court attached upon the filing of the petition in error. The briefs in the case were filed March 25, 1911, which was within the time required by the rule; and on March 22, 1911, a...

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11 practice notes
  • In re Water Rights In Big Laramie River, 781
    • United States
    • United States State Supreme Court of Wyoming
    • October 4, 1920
    ...error; the provisions of Sec. 4305 C. S. 1910 apply by analogy to proceedings in error. (Caldwell v. State, 12 Wyo. 206; Lobel v. Oil Co., 19 Wyo. 170); the statute comes from Ohio and the rule is established there, (Snyders Exrs. v. Young, 72 O. St. 494; Buckingham v. Bank, 21 O. S. 131); ......
  • State ex rel. Poston v. District Court of Eighth Judicial District, Fremont County, 1248
    • United States
    • United States State Supreme Court of Wyoming
    • July 1, 1924
    ...a complaint under oath; process as provided by statute is necessary to confer jurisdiction, Caldwell v. State, 12 Wyo. 206, Lobell v. Co., 19 Wyo. 170; In re Big Laramie River, 23 Wyo. 459; the statute 6831 C. S. requires the issuance and service of a citation, if it did not, Section 6735 C......
  • In re Big Laramie River, 781
    • United States
    • United States State Supreme Court of Wyoming
    • December 23, 1915
    ...v. Lepper, 13 Wyo. 99, 78 P. 1; 3 Ann. Cas. 627; Toltec Live Stock Co. v. Gillespie, 20 Wyo. 314, 123 P. 413; Lobell v. Stock Oil Co., 19 Wyo. 170, 115 P. 69.) The statute does not, however, prescribe what shall constitute the commencement of such a proceeding within the meaning of the prov......
  • North Laramie Land Co. v. Hoffman, 967
    • United States
    • United States State Supreme Court of Wyoming
    • March 10, 1921
    ...of this court is invoked by filing a petition in error and praecipe for summons. (Section 4422 Comp. Stats; Lobell v. Oil Co., 19 Wyo. 170). The application to amend comes too late, (Gibbons v. Scott, 19 Cal. 284; Warner v. Godfrey, 186 U.S. 365-377; Behannon v. Clark, (Ky.) 78 S.W. 479). P......
  • Request a trial to view additional results
11 cases
  • In re Water Rights In Big Laramie River, 781
    • United States
    • United States State Supreme Court of Wyoming
    • October 4, 1920
    ...error; the provisions of Sec. 4305 C. S. 1910 apply by analogy to proceedings in error. (Caldwell v. State, 12 Wyo. 206; Lobel v. Oil Co., 19 Wyo. 170); the statute comes from Ohio and the rule is established there, (Snyders Exrs. v. Young, 72 O. St. 494; Buckingham v. Bank, 21 O. S. 131); ......
  • State ex rel. Poston v. District Court of Eighth Judicial District, Fremont County, 1248
    • United States
    • United States State Supreme Court of Wyoming
    • July 1, 1924
    ...a complaint under oath; process as provided by statute is necessary to confer jurisdiction, Caldwell v. State, 12 Wyo. 206, Lobell v. Co., 19 Wyo. 170; In re Big Laramie River, 23 Wyo. 459; the statute 6831 C. S. requires the issuance and service of a citation, if it did not, Section 6735 C......
  • In re Big Laramie River, 781
    • United States
    • United States State Supreme Court of Wyoming
    • December 23, 1915
    ...v. Lepper, 13 Wyo. 99, 78 P. 1; 3 Ann. Cas. 627; Toltec Live Stock Co. v. Gillespie, 20 Wyo. 314, 123 P. 413; Lobell v. Stock Oil Co., 19 Wyo. 170, 115 P. 69.) The statute does not, however, prescribe what shall constitute the commencement of such a proceeding within the meaning of the prov......
  • North Laramie Land Co. v. Hoffman, 967
    • United States
    • United States State Supreme Court of Wyoming
    • March 10, 1921
    ...of this court is invoked by filing a petition in error and praecipe for summons. (Section 4422 Comp. Stats; Lobell v. Oil Co., 19 Wyo. 170). The application to amend comes too late, (Gibbons v. Scott, 19 Cal. 284; Warner v. Godfrey, 186 U.S. 365-377; Behannon v. Clark, (Ky.) 78 S.W. 479). P......
  • Request a trial to view additional results

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