McGinnis v. Beatty

• Citation: 196 P. 311,27 Wyo. 287
• Decision Date: 21 March 1921
• Docket Number: 909
• Parties: McGINNIS v. BEATTY
• Court: Wyoming Supreme Court

196 P. 311

27 Wyo. 287

McGINNIS v. BEATTY

No. 909

Supreme Court of Wyoming

March 21, 1921

APPEAL from the District Court of Niobrara County; HON. ERNEST C RAYMOND, Judge.

On re-hearing of motion to dismiss. For former opinion see 26 Wyo. 409, 186 P. 120.

Motions to dismiss denied.

M. H Neil and Kinkead and Henderson, for Motion to Dismiss.

It does not appear that a record on appeal was ordered prepared or filed; specifications of error were not served upon counsel for respondent; this court is without jurisdiction Culbertson v. Ainsworth, (Wyo.) 181 P. 418. The omissions cannot be cured by affidavit, Hahn v. Bank, 25 Wyo. 467; 172 P. 705; There was not a substantial compliance with the statute. The statute must be followed to confer jurisdiction. The right of appeal is statutory and jurisdiction on appeal cannot be invoked by consent of the parties.

Mentzer and Wilcox, in Resistance of Motion.

The appeal record contains all papers required by the statute; no objection was made to the record for more than one year indicating an acquiescence of respondent as to sufficiency of proceedings. There was a general appearance by respondents. (Honeycutt v. Nyquist, 12 Wyo. 183; Banks v. Sparks, 151 P. 525; Sax v. Clark, 180 P. 821; Hanson v. Hanson, 122 P. 100.) An appearance means the coming in of defendant, 1 Words and Phrases, 450; respondent entered into a stipulation for a continuance of the term and was too late to raise the question of jurisdiction of a person; (2 Ency. Pl. & Pr., 625; Lowe v. Stringham, 14 Wis. 22; Belknap v. Charleton, 25 Ore. 41; 34 P. 758; Frazier v. Douglas, 48 P. 36.) It is denied that the statutory provisions must be followed, but it is respectfully submitted that there has been a substantial compliance with the statute.

POTTER, Chief Justice. BLYDENBURGH, J., concurs. KIMBALL, J., did not sit, the hearing having occurred before his appointment to this court.

OPINION

POTTER, Chief Justice.

This case, here on direct appeal, has been heard the second time on a motion to dismiss, reinstatement having been ordered and a re-hearing granted after a former decision sustaining the motion. Thereupon the record on appeal was ordered returned to the district court, on appellant's application, for amendment so as to include a certified copy of the journal entry of the order appealed from, the appeal having been dismissed for the reason that the record did not contain such journal entry or anything to show that the order had been entered. 26 Wyo. 409, 186 P. 120. The amended record contains a certified copy of the journal entry of the order and a certificate of the clerk of the district court that such order, dated March 3, 1917, was entered on March 5, 1917.

After the amended record was returned to this court the respondent filed a renewal of the motion to dismiss on the grounds stated in the original motion and additional specified grounds. Briefly stated the grounds of the original motion are: 1. Insufficiency of the proceedings to give the court jurisdiction. 2. The failure of appellant to file briefs within sixty days after the filing of the record on appeal. And the following reasons are specified under the first ground: (A) That the record fails to show service of the notice of appeal within the time required by law after the entry of the order appealed from. (B) It fails to show service of specifications of error upon respondent or his attorney. (C) That specifications of error were not prepared and filed as required by section 8 of the direct appeal statute or otherwise. (D) That no record on appeal was prepared and filed as required by section 4 of the direct appeal statute. The renewed motion states in addition to the above, in substance: 1. That the appeal is from an order made on March 5, 1917, and the appellate proceedings were not perfected until after April 17, 1920. 2 & 3. That there is no bill of exceptions, and no summons in error filed or served and no precipe therefor filed. 4. That the record on appeal had not been certified by either the clerk or judge of the district court at the time of the former hearing, and that it was not certified until April 10, 1920. 5. That no steps having been taken prior to the submission of the cause to correct the record, any subsequent correction is without authority of law. 6. That no sufficient correction of the record has been made to give this court jurisdiction of the cause, or to vacate or modify its former decision dismissing the appeal. 7. That the record is without a proper certificate of the clerk that it contains all or any of the pleadings, or that the transcript of judgments and orders is full and complete, or that the record contains a transcript of all the record of the cause in the clerk's office.

Instead of following the order in which the several grounds are stated in the motions, they will be considered in the order seeming more convenient for discussion. The failure of the appellant to file his brief herein within sixty days after the filing of the record on appeal in this court, stated as the second ground of the original motion, was waived by respondent by his filing of a brief upon the merits without having objected to the delay in the filing of appellant's brief. (Union P. R. R. Co. v. Grace, 22 Wyo. 234, 137 P. 881; Reynolds v. Morton, 22 Wyo. 478, 144 P. 18; Nicholson v. State, 23 Wyo. 482, 153 P. 749.) It was held in those cases that the filing of a brief out of time is not jurisdictional, and that the failure to file the same within the time required by the rules may be waived. The filing by the defendant in error of an application for an extension of time within which to file his answering brief was held such a waiver in U. P. v. Grace, supra; and in Reynolds v. Morton, supra, the waiver was held to result from a written stipulation of the parties filed in this court extending the time for the filing of the brief of plaintiff in error, which was entered into and filed when the latter was in default. In Nicholson v. State, supra, the default was held to be waived where the Attorney General, representing the defendant in error recognized the brief of plaintiff in error filed out of time by a letter referring to it and other papers in the case and offering to submit the case on said papers. It was also held in that case that, since the filing of a brief out of time is not jurisdictional, a defendant in error, if desiring to insist upon the right to move for a dismissal on that ground or to strike the brief from the files, is required to act without unreasonable delay or be understood as waiving the objection; and a delay of ten months after the filing of the brief objected to on the ground stated was held to be unreasonable and to constitute a waiver. In the case at bar the record on appeal was filed on May 7, 1917, and appellant's brief on July 13, 1917. Respondent's answering brief was filed on July 31, 1917. The original motion to dismiss was not filed until November 8, 1919. That delay, as well as the filing of respondent's answering brief, was a waiver of the objection now being considered.

The notice of appeal was filed on March 10, 1917, seven days after the date of the order and five days after its entry. Written upon the face of and underneath the notice are the words and name, all appearing in the same handwriting, "Received copy of above M. H. Neil Attorney for Respondent." M. H. Neil was the attorney for plaintiff and respondent, and his name is signed to respondent's brief upon the merits filed in this court. The objection is made in the original motion that the record does not show service of the notice, that is, within ten days after the entry of the order appealed from, and counsel for respondent relies, in support of the objection, upon the principle established by our decisions that a notice filed or served before the entry of the judgment or order appealed from, and not after such entry, is premature, and upon Culbertson v. Ainsworth, 26 Wyo. 214, 181 P. 418, holding that the fact of due service and filing of the notice must appear from the record to confer appellate jurisdiction, and that where a notice was dated prior to the filing and entry of judgment and the endorsement thereon acknowledging service was without date, no presumption of service after the entry of judgment arose from the record. In that case we said:

"Upon the record, therefore, it does not appear that the notice was served after and not before the entry of the judgment, unless it may be presumed from the facts appearing by the record that it was so served, * * *. And we do not think the presumption legally or properly follows from the facts in the record that the notice was served within the time prescribed by the statute, though no doubt it might be presumed that it was served prior to the time the notice was filed and either before or on the date of such filing, from the fact that as filed the notice bears the endorsement acknowledging service as aforesaid. But that filing occurred on the next day after the entry of the judgment, and the notice is dated * * * four days before the judgment was entered, making it possible for the notice to have been served prior to such entry."

The facts of the present case are different in that the notice as well as the acknowledgment of service is undated, and the only date upon the paper is that of filing, which was five days after the date of the filing and entry of the order appealed from. And, though the order is dated March 3, 1917 it appears to have been made and signed by the district judge in chambers in another county and district, making it not only possible but quite probable that the order did not reach the office of the clerk of the court where the cause was pending until...