Mitter v. Black Diamond Coal Co.

• Decision Date: 01 September 1920
• Docket Number: 1005,998
• Citation: 27 Wyo. 72,191 P. 1069
• Parties: MITTER v. BLACK DIAMOND COAL CO. BLACK DIAMOND COAL CO. v. MITTER
• Court: Wyoming Supreme Court

191 P. 1069

27 Wyo. 72

MITTER v. BLACK DIAMOND COAL CO.

BLACK DIAMOND COAL CO. v. MITTER

Nos. 998, 1005

Supreme Court of Wyoming

September 1, 1920

Rehearing Granted 27 Wyo. 72 at 78.

ERROR to the District Court, Sweetwater County, HON. JOHN R ARNOLD, Judge.

Action by M. Mitter against the Black Diamond Coal Co. Judgment for plaintiff and defendant appeals and brings error. Heard on motions to dismiss the appeal and error proceedings. The cause was heard further on a petition for a rehearing.

Appeal, and Proceedings in Error dismissed.

Fred W Johnson and Harry C. Riddle, for Motion to Dismiss.

Appellant having failed to appoint a process agent in the state is not entitled to prosecute this action; the attempted appointment of Mr. Talliferro was declined by him; notice of appeal must be served within ten days from the entry of judgment, Ch. 32 Sec. 2. Default was taken against appellant in the court below but no effort was made to set it aside until after the expiration of the term; this motion was over ruled and no exceptions were preserved; the judgment was final; (Luther L. Co. v. Bank, 22 Wyo. 302; Conradt v. Lepper, 13 Wyo. 99); motion for a new trial was not filed within the time, (Todd v. Peterson, 13 Wyo. 513); notice of appeal is jurisdictional, (Culbertson v. Ainsworth, 181 P. 418); the appeal should be dismissed.

Fred W. Johnson and Harry C. Riddle, for Motion to Dismiss Writ of Review.

Plaintiff in error never appointed a resident agent; where there are two remedies for review, the election of one precludes the other, Ency P. & P. 7, Pp. 854; the two methods cannot be prosecuted together, 2 Cyc. 523; writs of review are permitted by the constitution, Art V. Sec. 18; more time than one year has elapsed since the entry of final order in the court below; there is no record of a final order or judgment nor a bill of exceptions; there is no jurisdiction in this court; (Luther Lumber Co. v. Bank, supra; Conradt v. Lepper, supra. Bertagnolli v. Bertagnolli, 148 P. 274): the motion for new trial must be filed within the time fixed by statute; (Todd v. Peterson, supra).

Louis Kabell, Jr., and Edwin J. Stason, In Resistance of Motion to Dismiss.

Irrespective of the appointment of a process agent, a foreign corporation may defend an action brought against it; (Am. Tel. Co. v. S.Ct. 153 Cal. 533; Swift Co. v. Platte, 68 Kans. 1. 78 P. 271); appellant has a right to protect its rights against an unjust decision; the default mentioned was due to absence of notice; no motion for new trial was filed because appellant was unavoidably prevented from filing the same for want of notice of the existence of the action; appellant sought to vacate the proceedings on the ground of surprise; Ch. 305, C. S. 1910 which was an act of March 12, 1918; prior to that date there was no proceeding for judgment or default; appellant is seeking to have the action of the trial court reviewed on direct appeal; the proceedings brought for permission to answer and defend in the action and set aside default; by the proceedings under Ch. 305, C. S. 1910, no judgment was entered on March 10, 1917; there was merely a notation made on the Judge's minutes from which an appeal could not be taken; a mere ruling on demurrer is not a final order; (Long v. Halley, 15 P. 514; Butte Mont. Co., 27 Mont. 152; Tauber v. Kein, 84 Neb. 167): there was nothing done by the trial court until March 2, 1918 requiring appellant to do more than it had already done, to-wit: apply for permission to answer and defend; no bill of exceptions is required by the direct appeal statute; where there are two methods of review and one is inadequate, the other is not waived; in some states both may be resorted to; the ground urged for dismissal for failure to fasten and arrange papers in chronological order is not well taken.

BEARD, Chief Justice. POTTER, J., and TIDBALL, V. J., District Judge, concur. Blydenburgh, J., being unable to sit in these cases, Hon. V. J. Tidball, Judge of the Second Judicial District, was called in as a member of the court and sat in his stead.

OPINION

BEARD, Chief Justice.

In each of these cases the Black Diamond Coal Company, a corporation seeks a reversal of the same judgment of the district court of Sweetwater County, in the case of M. Mitter against said company, and for that reason will be considered in one opinion. No. 998 is a proceeding brought under the direct appeal act, Chapter 32, S. L. 1917, in which case the record on appeal was filed in this court December 1, 1919; and No. 1005 is a proceeding in error in which the petition in error and praecipe for summons in error was filed February 7, 1920. In No. 998, the respondent filed a motion to dismiss the appeal upon the ground, with others, that this court is without jurisdiction to entertain the appeal. An examination of the record on appeal certified to this court discloses that the judgment or decree appealed from was entered in the district court March 2, 1918, and the last order or ruling in the cause, except the ruling on a motion for a new trial, was entered March 23, 1918, and the notice of appeal was not served until February 19, 1919, and was filed February 24, 1919. The statute governing direct appeals, Section 2, Chapter 32, S. L. 1917, provides: "An appeal must be taken by serving a notice in writing to such effect, signed by the appellant, or his attorney, upon the opposite party, or his attorney, within ten days from the entry of the order or judgment appealed from, and said notice of appeal shall be filed with the Clerk of the District Court where the order or judgment appealed from is entered, within said ten days." The statute providing for direct appeals makes no provision for a motion for a new trial, and the filing of such motion does not have the effect of extending the time for serving and filing the notice of appeal beyond the ten days from the...