McDonald v. Mulkey, 1091

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: BLUME, Justice.
• Citation: 210 P. 940,29 Wyo. 99
• Parties: McDONALD v. MULKEY
• Docket Number: 1091
• Decision Date: 05 December 1922

210 P. 940

29 Wyo. 99

McDONALD
v.
MULKEY

No. 1091

Supreme Court of Wyoming

December 5, 1922

APPEAL from District Court, Goshen County; WILLIAM C. MENTZER, Judge.

Action by John T. McDonald against H. G. Mulkey. Judgment for plaintiff, and defendant appeals. On motion to strike from the record and to dismiss appeal.

Motions of respondent overruled.

Kinkead, Ellery & Henderson, for the motion.

The record, at pages 202-215, purports to set forth an exhibit of documentary evidence not admitted in evidence on the trial and should, therefore, be stricken out. The record on appeal sets forth copies of exhibits introduced at the trial; 6406 C. S. requires originals. (See pp. 216-222 and 225-250.) These should also be stricken out. The judgment had not been entered at the time of serving notice of appeal; thereafter the judgment was modified. The rule is that the time of amendment or modification of judgment is the date of the rendition thereof, in the present case, January 6th, 1922, entered on the 9th day of January, 1922. No notice of appeal was filed after this date. (3 C. J. 1059; Hewey v. Andrews, 159 P. 1149; Johnson v. Forman, 56 N.E. 254; In re Potter's Estate, 74 P. 986; Hays v. Water Co., 68 P. 704.)

Retaxation of costs is a modification of judgment. (Spencer v. Mungus, 72 P. 663; Dobyns v. Trust Co., 98 N.Y.S. 748.) The record does not contain a certified transcript of the journal entry of judgment. It is not shown to be so certified. (Comm'rs. v. Shaffner, 10 Wyo. 181; Hahn v. Bank, 25 Wyo. 467; McGinnis v. Beatty, 26 Wyo. 409; Faulkner v. Faulkner, 27 Wyo. 62.) The record does not show that the purported original verdict, shown on page 253, was filed in the District Court, or, that the judgment, shown on page 255, was filed in said court; nor is it shown that the original judgment was filed. The record does not contain original exhibits of the documentary evidence as required by Section 6406 C. S. The record does not contain a certified transcript or copies of journal entries.

M. A. Kline and C. A. Paige, contra.

In support of the motion it is contended that the judgment entered on the journal, on November 30th, 1921 was modified by an order retaxing costs, on January 6, 1922, which latter date was the date of the judgment. Appellant is not appealing from the order of January 6, 1922, for the reason that it was in his favor. He is appealing from the judgment of November 18, 1921 which was a final order. (5875 C. S.) The statute, 5917 C. S. makes a distinction between a judgment and an allowance of costs. (Mak-saw-ba Club v. Coffin, 82 N.E. 461.) Pendency of a motion to vacate or modify a judgment does not relieve a party from appealing within the time fixed by statute, (3 C. J. 1504; Spotton v. Court, 171 P. 801; Railway Co. v. Kearns, 115 N.W. 340, 116 N.E. 432; Buzbee v. Morstorf, 182 P. 644.) Retaxation of costs does not alter the judgment, nor extend the time within which an appeal may be taken therefrom. (3 C. J. 1051; Wilson v. Palmer, 75 N.Y. 250; Hewitt v. City Mills, 136 N.Y. 211, 32 N.E. 768; Ost v. Salmanowitz, 104 N.Y.S. 849; Wadhams v. Allen, 45 Ore. 485, 78 P. 362; Lemmons v. Huber, 45 Ore. 282, 77 P. 836; Kearney v. C. S. P. & M. Ry. Co., 101 Minn. 65, 111 N.W. 923; Yates v. Burch, 87 N.Y. 409; Besser v. Alpena Cir. Judge, 119 N.W. 902; State ex rel. Pierson v. Millis, 48 P. 773; Comm. v. Caudill, 89 S.W. 535, 28 Ky. L. R. 520.)

The appeal here is from the judgment of November 18, 1921 which determined the rights of parties. (Parsons v. Parsons, 40 Utah 602, 122 P. 907; Custer v. Custer, 41 Utah 575, 126 P. 880; Schulze v. Oregon R. & N. Co., 84 P. 587; Chenoweth v. Chenoweth, 114 N.E. 988.) Even had the judgment been modified otherwise than as to costs, the appeal should be taken from the original judgment, the appeal period running from the date of such original judgment, unless the appeal be taken from the amended or modified portion of a judgment. (Snyder v. James, 2 Wyo. 252; Ala. C. & N. Co. v. State, 54 Ala. 36; Sav. & Loan Society v. Horton, 63 Cal. 310; Joyce v. Dickey, 104 Ind. 183, 3 N.E. 252; Burbank v. Rivers, 20 Nev. 159, 18 P. 753; Agassiz v. Kelleher, 11 Wash. 88, 39 P. 228; Leadbetter v. Laird, 45 Wis. 522; Schulze v. O. R. & N. Co., 41 Wash. 614, 84 P. 587; Gardner v. P. & E. Ry. Co., 121 P. 6; Cody v. Cody, 47 Utah 456, 154 P. 952; Chenoweth v. Chenoweth, 114 N.E. 988; Miller v. Prout, 187 P. 948; Chambers v. Jacobia, 79 N.W. 227.)

The fifth, sixth and eighth reasons given for requesting this court to dismiss the appeal appear to be frivolous and without merit. The statute, 5900 C. S., requires judgment and orders to be entered on the journal. The certificate of the clerk shows that the judgment here was entered on the journal on November 30, 1921. This is sufficient. (Kendrick v. Healy, 26 Wyo. 261.) As to the verdict: the clerk certified as to its filing and that should be sufficient. As to copies of original exhibits: certain stipulations of counsel are to be found regarding them. The plain intent of the statutes makes a certified transcript of documentary evidence, introduced at the trial, sufficient for the purpose of appeal. As to the motion to strike portions of the record, defendant's exhibit No. 3 was offered in evidence on the trial, the court did not rule upon its admission or rejection, hence it stands in the same situation as other testimony, not ruled out. The statute provides that the transcript shall contain all testimony offered at the trial and this evidence was offered at the trial. Pages 216-222, inclusive, sought to be stricken out are a part of defendant's Exhibit No. 3 and the same reasoning applies thereto. Pages 225-250 are copies of stipulation and documentary exhibits annexed to the depositions, the originals of which could not well be filed in this court for reasons heretofore explained.

BLUME, Justice. KIMBALL, J., and BURGESS, District Judge, concur, the latter sitting in place of Potter, Ch. J., who, being ill, could not sit.

OPINION [210 P. 941]

[29 Wyo. 103] BLUME, Justice.

The case is pending here on a motion to strike and also on a motion to dismiss, both made by respondent. Appellant in turn filed a motion to send back the record to the lower court for correction, in case we should hold that necessary or proper as a consequence of our ruling on the motions of respondent. The reasons assigned in the latter motions will appear fully in the discussion that follows, and it is not necessary to set them out at length.

1. The judgment in the court below was rendered Nov. 18, 1921, and the costs taxed therein. Thereafter a [29 Wyo. 104] motion was filed to retax the costs. This motion was acted on January 6th, 1922, the costs were retaxed and the original judgment modified in that respect but in no other. Respondent now contends that the appeal herein should have been taken from the judgment as so modified on January 6th, 1922, by said order retaxing costs. But by that order the main judgment was in no way affected. It deals merely with the costs, an incident to the former, and no complaint is made of the action of the court thereon. While the original judgment may be said to have been, in a sense, modified, it would seem altogether illogical to say that an order of which no one complains should necessarily be the basis of an appeal in the case. At least the great weight of authority is, we think, to the contrary. (3 C. J. 1051; Wadhams v. Allen, 45 Ore. 485, 78 P. 362. See also School District v. Western Tube Co., 13 Wyo. 304, 329, 80 P. 155.) Some of the cases cited by counsel for respondent appear not to be in point. In Spencer v. Mungus, 28 Mont. 357, 72 P. 663, the only error assigned was the action of the lower court in allowing costs. In the case of In re Potter's Estate, 141 Cal. 350, 74 P. 986, it would seem, though it is not clear, that error was predicated, among other...