Martellaro v. Sailors, No. 4216
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | GUTHRIE |
| Citation | 515 P.2d 974 |
| Docket Number | No. 4216 |
| Decision Date | 13 November 1973 |
| Parties | Ben MARTELLARO, Appellant (Defendant below), and J. A. Redner, (Defendant below), v. Barton E. SAILORS et al., Appellees (Plaintiffs below). |
Page 974
v.
Barton E. SAILORS et al., Appellees (Plaintiffs below).
Arthur Kline, Cheyenne, for appellant.
Floyd R. King, Jackson, for appellees.
Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.
Mr. Justice GUTHRIE delivered the opinion of the court.
This is an appeal from an order of the trial court denying appellant's motion for vacation of summary judgment and for stay of proceedings to enforce judgment
Page 975
under Rule 60(b)(1) and (6), W.R.C.P. The judgment sought to be vacated was a summary judgment entered on May 1, 1972. This motion was filed August 16, 1972.In his motion to vacate, appellant asserted that he had no notice of the motion for summary judgment and had not received a copy thereof; that he had filed an answer to the complaint; that the affidavits in support of the summary judgment did not contravene the allegations in the answer; and that genuine issues of material facts existed.
The material portion of the affidavit of appellant attached to the motion in support thereof recites his filing of an answer and that his address was 2064 Rosedale Drive, San Pablo, California, and that mail so addressed was customarily delivered to him; the entry of the judgment entered pursuant to the motion for summary judgment; that he did not receive the notice and had no knowledge of the hearing or the entry of this judgment until after the judgment had been entered; and that he had a meritorious defense. There were no facts recited in this affidavit setting out any defense-only conclusions. Appellant made no other showing in support of this motion.
Plaintiffs' attorney certifies to the mailing of this notice to appellant at his proper address on April 13, 1972. In addition there also appears in the record an affidavit of service by plaintiffs' attorney showing the mailing of the notice of hearing by certified mail to the proper address on April 13 and its return marked 'Unclaimed.' The envelope enclosing the notice also appears in the record and the following notation appears thereon: 'No response. Left notice 4-15-72.' It shows its return to the sender on May 19, 1972. No explanation is made why the letter was not delivered after such notice nor any denial that such notice was given.
The rule under which appellant seeks to proceed applies to special...
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England v. Simmons, No. 86-74
...450 F.2d 999, 13 A.L.R.F. 243 [1971], certiorari denied 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 [1972]." Martellaro v. Sailors, Wyo., 515 P.2d 974, 976 It should be noted that Rule 20, W.R.C.P., is entitled "permissive joinder." (Emphasis added.) Under our statutes relating to joinder, t......
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State Bank Charter Application of Sec. Bank, Buffalo, Matter of, No. 5153
...to consider it. There must be some finality even in administrative proceedings, as in judicial proceedings, Martellaro v. Sailors, Wyo., 515 P.2d 974, This rule is nothing more than a rephrasing of the standard appellate rule that issues not raised before the trial court will not be conside......
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Gifford v. Casper Neon Sign Co., Inc., No. 5534
...Wyo., 598 P.2d 814; Atkins v. Household Finance Corporation of Casper, Wyoming, Wyo., 581 P.2d 193 (1978); Martellaro v. Sailors, Wyo., 515 P.2d 974 (1973); Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972); and Kennedy v. Kennedy, Wyo., 483 P.2d 516 (1971). In McBri......
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Wyoming Bancorporation v. Bonham, No. 4363
...to consider it. There must be some finality even in administrative proceedings, as in judicial proceedings, Martellaro v. Sailors, Wyo., 515 P.2d 974, Appellant's last contention that the findings of fact and conclusions of law are not supported by the evidence has been covered in some part......
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England v. Simmons, No. 86-74
...450 F.2d 999, 13 A.L.R.F. 243 [1971], certiorari denied 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 [1972]." Martellaro v. Sailors, Wyo., 515 P.2d 974, 976 It should be noted that Rule 20, W.R.C.P., is entitled "permissive joinder." (Emphasis added.) Under our statutes relating to joinder, t......
-
State Bank Charter Application of Sec. Bank, Buffalo, Matter of, No. 5153
...to consider it. There must be some finality even in administrative proceedings, as in judicial proceedings, Martellaro v. Sailors, Wyo., 515 P.2d 974, This rule is nothing more than a rephrasing of the standard appellate rule that issues not raised before the trial court will not be conside......
-
Gifford v. Casper Neon Sign Co., Inc., No. 5534
...Wyo., 598 P.2d 814; Atkins v. Household Finance Corporation of Casper, Wyoming, Wyo., 581 P.2d 193 (1978); Martellaro v. Sailors, Wyo., 515 P.2d 974 (1973); Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972); and Kennedy v. Kennedy, Wyo., 483 P.2d 516 (1971). In McBri......
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Wyoming Bancorporation v. Bonham, No. 4363
...to consider it. There must be some finality even in administrative proceedings, as in judicial proceedings, Martellaro v. Sailors, Wyo., 515 P.2d 974, Appellant's last contention that the findings of fact and conclusions of law are not supported by the evidence has been covered in some part......