McClintock v. Ayers

• Decision Date: 13 April 1926
• Docket Number: 1344
• Citation: 245 P. 298,34 Wyo. 476
• Parties: McCLINTOCK v. AYERS [*]
• Court: Wyoming Supreme Court

245 P. 298

34 Wyo. 476

McCLINTOCK v. AYERS ^[*]

No. 1344

Supreme Court of Wyoming

April 13, 1926

Appeal from District Court, Converse County; CYRUS O. BROWN, Judge.

Action by T. E. McClintock, Receiver of Citizens' National Bank of Cheyenne, a corporation with its principal place of business at Cheyenne, Wyoming, against William L. Ayers and others. Plaintiff appeals from the judgment. Heard on respondent's motion to dismiss appeal.

Motion to Dismiss Denied.

Kinkead Ellery and Henderson, for the motion.

Section 6406 C. S. requires the record on appeal to be certified, by the clerk of the trial court, as true and correct; the record here has not been certified; 6406 C. S. provides that the specifications of error, when filed, shall be certified by the clerk and be thereafter attached to the record; 6408 C S. requires appellant to serve and file his specifications of error within ten days after the record on appeal is filed the record on appeal was transmitted prematurely by the clerk of the trial court, and filed in this court prematurely; 6410 C. S. allows the trial court twenty days from the date of filing the specifications of error, to determine whether or not a new trial should be granted; under the statute, the expiration of twenty days, from the date of filing the specifications of error without the affirmative action by the court in granting a new trial, is tantamount to an order denying a motion for a new trial; Minter v. Coal Co., 28 Wyo. 72-85. The petition here is the same as would exist in a proceeding in error attempted to be brought prior to the ruling of the trial court on a motion for new trial; perfection of an appeal by service on all joint defendants is essential to give the court jurisdiction; in re Big Laramie River, (Wyo.) 192 P. 680. In this case service of the specifications of error upon defendant, Mason, was incomplete.

William C. Mentzer, contra.

The movants failed to point out wherein the certificate of the clerk fails to comply with Section 6406, C. S.; the certificate is in form approved in Commissioners v. Shaffner, 10 Wyo. 181; McGinnis v. Beatty, (Wyo.) 196 P. 311; Harden v. Card, (Wyo.) 85 P. 246; Reynolds v. Morton, 22 Wyo. 478; Kendrick v. Healey, 26 Wyo. 261. Idaho Land Co. v. Bradbury, 132 U.S. 509, was a case wherein the clerk's signature had not been attached but the court refused permission to withdraw the record for that purpose. See also Bank v. Moderwell, (Ohio) 52 N.E. 194; Burnham v. Ry. Co. , 87 F. 168; failure of the court to properly authenticate the specifications of error, would not constitute ground for dismissal; Hahn v. Bank, (Wyo.) 171 P. 889; McGinnis v. Beatty, Supra; Hanson v. Ry. Co., (Wyo.) 213 P. 763; Farrar v. Churchill, 135 U.S. 609; Realty Co. v. Rudolph, 217 U.S. 547; Wilson v. Kryger, (N. D.) 143 N.W. 764; imperfection in the record, due to non-performance of duty by the clerk, is no ground for dismissal; Iven v. Jessup, (Wyo.) 121 P. 1001; Reynolds v. Morton, 22 Wyo. 478; McGinnis v. Beatty, Supra; Allen v. Lewis, (Wyo.) 177 P. 433; Land Co. v. Hoffman, (Wyo.) 195 P. 988. Section 6410 C. S. imposes a duty on the clerk and the judge; Carstensen v. Brown (Wyo.) 185 P. 567; Allen v. Lewis, Supra; but the point urged for dismissal on the ground of prematurety in filing the record, is not well taken; the twenty day period, for considering the granting of a new trial, may be waived; the intention of this statute was to aid rather than to interfere with a prompt administration of justice; Hanson v. Ry. Co., Supra; Goodrich v. Peterson, (Wyo.) 74 P. 497; in the case at bar, there was good service of the specifications of error on respondent Mason; failure to sign an original pleading does not affect its validity; Wilcox v. Chambers, 34 Conn. 179; Carr v. Adm'r., (Ky.) 102 S.W. 282; Manspeaker v. Bank, (Kan.) 46 P. 1012; Cochran v. Thomas, 131 Mo. 258; Bell v. Company, (Calif.) 231 P. 598; Bexar Ass'n., v. Newman, (Tex.) 25 S.W. 11; the code is to be liberally construed; 5532 C. S. Where no prejudice has resulted to respondent, and there is no jurisdictional defect, an appeal will not be dismissed for formal defects; Hanson v. Ry. Co., Supra.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

This cause has been heard upon a motion to dismiss. The first ground is that the certificate authenticating the record on appeal as filed in the District Court, and later transmitted to and filed in this court, does not comply with the statute. This is a direct appeal under the provisions for that procedure first enacted in 1917 (L. 1917, Ch. 32), and amended in some respects as to the record on appeal, in 1919 (L. 1919, Ch. 15), the provisions as so amended being now found in Section 6405, Comp. Stat. 1920. The section provides that the clerk of the district court shall prepare a record on the appeal, to consist of original or certified copies of the pleadings, motions, demurrers, instructions given and refused, verdict and findings, certified copies of the journal entries, including the entry of the judgment or order appealed from, and the notice of appeal in the cause, securely attached together in their chronological order, and a transcript of the testimony, if prepared and filed and to be brought up on the appeal; and that when so prepared "the whole of such record shall be paged and numbered consecutively, and shall be certified to by the clerk of the district court as true and correct and filed in his office."

The point of the objection now made is that the certificate does not state that the record "is true and correct" by the use of those words. But we think it sufficient, since it does show that the attached papers or those referred to, labeled "Record," in this case, three bound packets numbered respectively Volume 1, 2 and 3, contain a certified copy of all of the journal entries in the cause, and all and correctly of the original papers in the case, reciting each, as, for example, reading from the beginning of such recitation, "petition, praecipe for summons, summons, motion for specific statement," and ending with "transcript of testimony and exhibits thereto attached." Indeed, there are two certificates, the first authenticating a copy of the journal entries, as "a true, full and correct copy of all the journal entries in the cause of" stating the title of the cause "so full and entire as the same appear of record in my office." And the final certificate, immediately following, recites as aforesaid all "full, true and correct original papers," naming them, and "certified copies of all journal entries, including judgment, verdict, all orders, transcript of testimony, and exhibits thereto attached." That certificate then concludes: "And I certify that the above enumerated papers are all of the original papers filed in said cause."

In Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, the clerk's certificate authenticating the record on appeal, though not stating in so many words that the record "is true and correct," was assumed to be sufficient, the court, after quoting the statute, saying: "The record here is certified * * * * as a full, true and correct transcript of all papers filed and proceedings had in said cause." And in McGinnis v. Beatty, 27 Wyo. 287, 196 P. 311, speaking to this question, and referring to a record returned for amendment and again, after amendment, transmitted to this court, we said: "The clerk's original certificate does not use the words that the record is true and correct. But it does certify, as above stated, that the attached and foregoing instruments, numbered 1 to 22 inclusive, are the original instruments filed in the cause, and that number 23 is a full, true and correct copy of the orders specified in the certificate. And we think that a sufficient compliance with the statutory provision that the record when prepared shall be certified to by the clerk as true and correct. * * * * The clerk having originally certified that certain instruments preceding the certificate numbered as stated above are the original instruments filed in the cause, indicating, we think, all of the instruments so filed, and further, that the remaining instrument referred to by its number as aforesaid, was a full, true and correct copy of certain stated orders of the court, is substantially the same as stating that the record is true and correct, and should be given the same effect, we think, as though the statutory words had been used in the certificate."

The second ground of the motion is that no specifications of error, authenticated by the district court clerk's certificate, appear in the record on appeal. A document so entitled, and appearing in form to be such, is in the record, marked as filed, over the signature of said clerk, on September 17, 1925, which was within the period provided by law for the filing and serving thereof; that is to say, within ten days after the filing in the clerk's office of the record on appeal. But there is no separate authentication thereof. However, it bears a written acknowledgment and acceptance of service on September 16, 1926, by Otto E. Rouse, one of the defendants below and a respondent here, and by the attorneys of two other defendants and respondents, seeming to indicate, together with the filing mark, that the document is the original specifications of error. And there are also in the record, marked "Filed" over the signature of the clerk on the same day, two copies of said document, but with the signatures of the counsel filing the same omitted, claimed here to have been filed for the purpose of service upon a party who could not be found in the county for personal service.

The procedural statute we are considering, as originally enacted provided...