McGinnis v. Beatty

• Decision Date: 10 January 1920
• Docket Number: 909
• Citation: 186 P. 120,26 Wyo. 409
• Parties: McGINNIS v. BEATTY
• Court: Wyoming Supreme Court

186 P. 120

26 Wyo. 409

McGINNIS v. BEATTY

No. 909

Supreme Court of Wyoming

January 10, 1920

APPEAL from District Court, Niobrara County, HON.E. C. RAYMOND Judge.

Action by Chas. F. McGinnis against J. A. Beatty. From a judgment for plaintiff, defendant appeals. Heard on motion to dismiss.

Appeal dismissed.

M. H Neil and Kinkead & Henderson, for the motion.

The record on appeal fails to show entry of judgment and also fails to show that notice of appeal was served within 10 days of the entry of judgment; this court is without jurisdiction to consider the appeal (Culbertson v. Ainsworth, 181 P. 418); the defect cannot be cured by affidavits (Hahn v. Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705) jurisdiction of the subject matter on appeal cannot be conferred by consent of parties; the record on appeal is fatally defective and appeal should be dismissed.

Mentzer & Wilcox, for appellant.

Respondent waived all questions of notice by entering a general and voluntary appearance, including a stipulation for a continuance. No question of jurisdiction was raised and he should be considered in court for all purposes (Honeycutt v. Nyquist, 12 Wyo. 183, 1 Wrds. & Phr. 450, 11 N.W 132); the appearance of respondent was general (2nd Ency. Pl. & Pr. 625); the test is whether the appearance is other than to question the jurisdiction (Sit You Guire v. Heard, 120 P. 1135; Belknap v. Charlton, 25 Ore. 41; 34 P. 758; Swecker v. Reynolds, 246 Pa. 202); where an appearance is made, the parties cannot afterwards object to the jurisdiction of the court (44 Ohio State; Fraizer v. Douglas, 48 P. 36, 21 R. C. L. 592).

BLYDENBURGH, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

BLYDENBURGH, JUSTICE.

This case is here on direct appeal and was heard on a motion to dismiss the appeal. The motion is based on the ground that "This court never acquired and is now without jurisdiction of said cause on appeal for the following reasons." Then follows four separately stated matters in which it is claimed that the requirements of the statute governing direct appeals to this court have not been complied with. It is not necessary to consider these reasons separately as the underlying fact appears that the record on appeal does not contain any certified copy of the entry of the order or judgment appealed from or any certified copy of any journal entry at all. There does appear a paper entitled "Order on motion to vacate judgment", signed by the trial judge, which paper has the endorsement on the back, "Filed March 5, 1917, A. L. Miller, Clerk of Court". There is nothing to show that this paper was ever entered on the journal of the court or that it is a copy of any entry. The certificates of the Clerk and the Judge to the so-called record on appeal do not refer to any judgment or to this order or to any entry of the same. The facts in this respect are entirely similar to those in Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705, in which case this court held that it must appear from the record on appeal that the judgment appealed from had been entered on the journal and the date of the entry, and this should be shown by a...