Miller v. New York Oil Co.

• Decision Date: 23 April 1925
• Docket Number: 1293
• Citation: 32 Wyo. 483,235 P. 323
• Parties: MILLER v. NEW YORK OIL CO
• Court: Wyoming Supreme Court

235 P. 323

32 Wyo. 483

MILLER v. NEW YORK OIL CO

No. 1293

Supreme Court of Wyoming

April 23, 1925

APPEAL from District Court, Natrona County; ROBERT R. ROSE, Judge.

Action by H. E. Miller against the New York Oil Company. There was judgment for plaintiff. Heard on motion to dismiss defendant's appeal. No briefs.

Motion to Dismiss Denied.

M. F Ryan, for plaintiff and respondent.

Winter & Winter, for defendant and appellant.

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

OPINION

POTTER, Chief Justice.

This cause has been heard on a motion to dismiss the appeal upon the stated ground that "the record for appeal was not prepared and filed with the Clerk of the District Court within the statutory time, or within a valid extension under statutory authority."

It appears that the appeal is taken from the final judgment rendered upon the trial of the cause, based upon written findings of fact and conclusions of law; that the judgment was rendered on November 9, 1923, and entered upon the journal under that date, as one of the days of the September 1923, term, without anything to show a different date of entry; that the notice of appeal was dated and filed and served on November 17, 1923, and that the record on appeal was filed in the district court on December 11, 1924. It appears also that by several orders made and entered upon the journal, the statutory period of seventy days from and after the entry of the judgment appealed from, allowed as a matter of right, for preparing and filing the record on appeal in the district court, was extended from time to time until and including the date aforesaid upon which the record was filed. So, if the said orders extending the time were properly made the record was filed in due time. It is contended, however, that two of said orders, appearing to have been made by the district court commissioner, were made without authority.

The first extension order was made within the statutory period by the district judge upon application in proper form, and showing as cause that it was impossible to obtain a transcript of the testimony within said statutory period, which was supported by the affidavit of the court reporter. And it may be said here that each subsequent application for extension was filed before the expiration of the time as extended, based upon the same cause and supported by a like affidavit, and the order for additional extension in each instance was also made within the period as previously extended.

The contention is that the direct appeal statute authorizes the extension of such time only by order of the court or judge. That is the language of the statute; the pertinent words being "which time may be by the court or the judge thereof, extended or enlarged for cause shown." But it is provided in the Constitution (Art. V, Sec. 14), that the legislature shall provide by law for the appointment by the several district courts of one or more district court commissioners in each organized county in which a district court is holden, and that "such commissioners shall have authority to perform such chamber business in the absence of the district judge from the county or upon his written statement filed with the papers that it is improper for him to act, as may be prescribed by law, to take depositions and perform such other duties and receive such compensation as shall be prescribed by law." Pursuant thereto the legislature provided for the appointment of such commissioners and expressly (Comp. Stat. 1920, Sec. 1148), that among other stated powers they shall have power "in respect to every suit or proceeding pending in the district court of the county for which he was appointed: "1. to make any order which the district judge is authorized by law to make in chambers, if such judge is absent from the county for which such commissioner was appointed. 2 To make any order which the district judge is authorized by law to make in chambers, upon the written statement of said judge, filed with the papers, that he is disqualified in such case. It is also provided that all orders made by the district court commissioner shall be signed by the commissioner and entered at length upon the journal in the district court, and that the district court shall at each term review all orders made by and proceedings had before such commissioners during vacation, and approve, disapprove, reverse or modify every such order or proceeding."

We think there can be no doubt that the authority conferred upon the district judge by the direct appeal statute to extend the time for preparing and filing the record on appeal may be exercised in chambers, and is so intended by the provision conferring the power upon "the court or the judge thereof;" and, therefore, we see no good reason for denying the right and authority of the commissioner, upon proper application and under the conditions stated in the constitution and statute, to grant such an order. It was said by this court in Coffee v. Harris, 27 Wyo. 494, 199 P. 931, disposing of a petition for rehearing, that no showing was made in that case that the motion was presented to a court commissioner, but, without deciding, because unnecessary, whether the commissioner would have authority to act; though it was added that it seemed to be the holding and constant practice in Wisconsin for a court commissioner to grant extensions of time, citing cases. In Hempsted v. Cargill, (Minn.) 48 N.W. 686, it was contended that an appeal from an order of condemnation commissioners had not been properly taken because the bond had not been approved by the district judge, but the court said:

"Assuming that it was essential to the acquiring of jurisdiction by the court that the requirement of the statute as to a bond be complied with, we are of opinion that this was done. The court commissioner, having the authority of a district judge at chambers, might discharge the official duties of the latter officer respecting such bonds."

It appears that two of the extension orders were granted...