McLaughlin v. Upton

• Decision Date: 11 April 1883
• Citation: 3 Wyo. 48,2 P. 534
• Parties: McLAUGHLIN v. UPTON
• Court: Wyoming Supreme Court

2 P. 534

3 Wyo. 48

McLAUGHLIN v. UPTON

Supreme Court of Wyoming

April 11, 1883

On remand from the supreme court of the United States.

Action by Clark W. Upton, assignee of the Great Western Insurance Company, against Daniel McLaughlin. Judgment for plaintiff and defendant brings error. Affirmed.

Judgment affirmed.

W. W Corlett, for plaintiff in error.

C. N Potter, for defendant in error.

SENER, C. J. PARKS, J., concurs. BLAIR, J., dissents.

OPINION

SENER, C. J.

This was a civil action brought in the district court for the first judicial district, in and for Laramie county, by Clark W. Upton, assignee of the Great Western Insurance Company, against Daniel McLaughlin, as a stockholder in said company, to recover the balance alleged to be due and unpaid on his stock. The case was tried on the pleadings, in the court below, by a jury, and a verdict rendered for the plaintiff for $ 1,008. Upon the case coming into this court, the judgment below was reversed upon the former hearing, (2 Wyo. 32,) on the ground that the action was barred by the statute of limitations, which claim was first made in this court, and the case was thereafter heard in the United States supreme court, and remanded here for hearing upon other questions, this court being reversed upon the question of statute of limitations. Vide Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197. The petition in error puts in issue in this court several questions respecting the admission of testimony, and the instructions of the court to the jury.

The defendant in error raises for consideration here, in his brief, the fact that the motion for a new trial in the court below was not filed in time, and submits it to the consideration of this court. The case was tried in the court below, and a verdict rendered on the 15th of December, 1876, against the defendant and in favor of the plaintiff. The motion for a new trial was filed on the 16th of February, 1877, or a period of more than 60 days thereafter. The reasoning, authorities cited, and conclusions reached in Kent v. Upton, ante, 51, 3 Wyo. 43, 2 P. 234, apply to and should govern, we think, in the determination of this case. The records are slightly different. In this case we find the following journal entry in the record before us:

"November Term, 1876. --Monday, December 18, 1876. Clark W. Upton, Assignee in Bankruptcy of the Great Western Insurance Company, v. Daniel McLaughlin. On application of Thomas J. Street, Esq., of counsel for defendant, it is ordered that the time for filing a motion to set aside the verdict and grant a new trial herein be extended until the end of the present term of the court."

Preceding this, but no part of the journal entry, is this statement: "And thereafter the court, on the request of the defendant, and for good cause shown, made the following order in said case." It looks as if this was inserted to cure the plainly invalid order of December 16, 1876. Does it do so? Plainly, we think not. The most that can be said of it, we think, is that it is to be treated and considered as if embraced in the body of the order of December 16, 1876. If this be conceded it is still liable to the objection that it was purely ex parte; but it may be claimed that it should have been excepted to. If this be insisted on, the answer is, that by the Compiled Laws of Wyoming, the party excepting must do so at the time the decision was made. Vide section 300, c. 13, p. 71. How could this be done if the party were not present in court, either in person or by counsel? and there is no pretense in the order that both parties were present. But there is another journal entry that it may be claimed cures this. It is the journal entry made on the 31st of March, 1877, when the bill of exceptions was allowed. It is in that order recited, both parties being in court by their attorneys, that the defendants present their bill of exceptions, which is agreed upon by both parties to this suit. The answer to this is that it states only what is set forth as true. Giving to this all the weight it is entitled to, it results that nothing more is to be inferred than that such a journal entry was by the court made orally and ex parte, and for what the court, upon an ex parte hearing, deemed good cause, in spite of the fact that, by sections 308 and 309, a motion for a new trial can only be on written grounds.

Nor is the defendant in error to be deemed to have waived any of his rights by appearing and arguing the motion for a new trial. The defendant in error, it is true, might have moved to dismiss the motion, because not filed in time; but there is nothing statutory requiring this. He may have relied upon this very fact in the argument of his motion in the court below, and that court may have considered and acted on the fact that the motion on written grounds...