Patrick v. State
| Citation | 96 P. 527,17 Wyo. 115 |
| Parties | PATRICK v. STATE |
| Decision Date | 15 July 1908 |
| Court | United States State Supreme Court of Wyoming |
ERROR to the District Court, Natrona County, HON. CHARLES E CARPENTER, Judge.
Heard on motion to dismiss.
Motion denied.
W. E Mullen, Attorney General, for the State, in support of the motion to dismiss.
No exceptions were taken or reserved to the judgment and sentence, which judgment was fully paid, satisfied, and discharged by the payment of the fine and costs imposed. The payment of a fine, even if the payment be accompanied by a formal protest made after judgment and filing in writing, is not an exception to the judgment. (Atchison v. Arnold (Wyo.) 73 P. 964.) But, if it should be considered as in the nature of an exception, it does not appear in the record of the judgment, and could only be preserved for consideration here by a bill of exceptions. (Johnson v Irr. Co., 4 Wyo. 164.) If an exception had been taken to the judgment, it could not be considered here after a full compliance with the judgment. There can be no appeal from a judgment entered, satisfied, and discharged by a full compliance therewith, for the reason that every issue determined by the judgment is withdrawn from further controversy, and the appeal presents nothing but abstract questions. (Diefenderfer v. State ex rel., 13 Wyo 387.) The satisfaction of the judgment is the last act and end of the proceeding. (Norton v. Court, 65 Cal. 496; People v. Burns, 78 Cal. 645.) A motion in arrest, if made at all, must be made before sentence. (Abbott's Cr. Tr. Br., 734; Terr. v. Corbett, 3 Mont. 50.) The so-called motion in arrest is not based upon the prescribed statutory grounds. (Sec. 5418, R. S. 1899.)
According to appellant's own theory of the case, a motion in arrest would not afford the remedy sought, for the reason that if the judgment was erroneous, or even void, for want of jurisdiction of the person or the subject matter, the only practical relief available after the payment of a fine in satisfaction of the judgment, would seem to be such as might be accorded in some appropriate action brought for the recovery of the money, from the person or persons having possession thereof. (Houtz v. Commissioners, 11 Wyo. 152.) The errors discussed in the brief, relative to the manner in which the offense was charged, are such as could be excepted to, only by a motion to quash, plea in abatement, or demurrer. (Koppala v. State, 89 P. 576; Wilbur v. Terr., 3 Wyo. 268; Miller v. State, 3 Wyo. 657; Tway v. State, 7 Wyo. 74.) A plea of guilty having been entered, there remained nothing for the court to do but render judgment and fix the punishment prescribed by law. (Hollibaugh & Bunten v. Hehn, 13 Wyo. 276.)
Evidence in the form of affidavits, and other papers, and exceptions taken to orders and rulings thereon, made subsequent to the entry and satisfaction of judgment, which appear annexed to the original papers filed in this court, cannot be reviewed on appeal unless properly presented in a duly authenticated bill of exceptions. (Koppala v. State, supra.) There is, therefore, nothing before this court subject to review nor evidence of any other fact indicating an irregularity in the entry of judgment in the remotest degree.
Allen G. Fisher, for plaintiff in error, contra.
The motion to dismiss is not based on proper grounds. This petition in error should be heard because the foundation of the proceeding is an unconstitutional statute and because the record does not show jurisdiction, which would not be waived by payment of the fine and costs under protest. In this record there is no evidence of arrest, of service of information by copy, or of jurisdiction acquired, unless it be a voluntary appearance by defendant. In no criminal case has it ever been held that the defendant waives a copy of the criminal charge. But this is not a criminal charge; it is a civil proceeding for a penalty pursuant to the provisions of Section 2095, of the Sheep Inspectors Act, and by his voluntary appearance defendant waived the issuance and service of summons, entered his general appearance, waived time to answer, and here challenges the constitutionality of the statute by a motion in arrest of judgment, or an oral demurrer here and saves his right while imprisoned, and in duress, without any warrant, by a payment under protest, the same as he might do in a similar case if held under an execution against his person for a debt.
The case is exactly parallel with an action under an ordinance "in the nature of a civil action for the recovery of a debt." (Sutton v. McConnell, 46 Wis. 269; Ry. v. Foster, 43 Ill. 480; Huron v. Carter, 5 S.D. 4; Peterson v. State, (Neb.) 112 N.W. 308; Jenkins v. Cheyenne, 1 Wyo. 289.) The commitment being but an execution enforcing the judgment, a payment under protest will save the right of review. The history of the statute relied upon shows it to be void upon the grounds sought to be set up in the plaintiff's brief. The motion in arrest being matter of record by statute, no bill of exceptions is necessary; and unless the protest is matter of record, there is no proof before this court that this judgment has been satisfied. (State v. Bartley, 56 Neb. 810; Black v. Winterstein, 6 Neb. 224.)
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