Porter v. Carstensen, 1713
| Decision Date | 23 February 1932 |
| Docket Number | 1713 |
| Citation | 8 P.2d 446,44 Wyo. 49 |
| Parties | PORTER, ET AL. v. CARSTENSEN |
| Court | Wyoming Supreme Court |
APPEAL from District Court, Washakie County; E. H. FOURT, Judge.
Action by Wilmer C. Porter and another against Henry A. Carstensen. From the judgment, defendant appeals. Heard on motion to dismiss.
Case dismissed.
For the plaintiffs and respondents there was a brief and an oral argument by C. H. Harkins, of Worland, Wyoming, in support of motion to dismiss.
The record on appeal was not filed in the Supreme Court within the time provided by Sec. 6410 C. S. The specifications of error attached to the record on appeal are not authenticated by the certificate of the Clerk of the District Court as required by Sec. 6406 C. S., and are not therefore a part of the record on appeal. The appeal should be dismissed.
For the defendant and appellant there was a brief and oral argument by Charles L. Brome, of Basin, Wyoming, contra.
The Clerk of the District Court promised to transmit the appeal record promptly after the expiration of time allowed by statute for the granting of a new trial. The delay was only 38 days in any event, which was not unreasonable in view of the explanation set forth by the affidavit submitted by appellant. On the second ground of the motion, appellant moved that in accordance with Rule 12, the record be transmitted to the Clerk of the District Court of Washakie County in order that his certificate of authentication to the specifications of error may be annexed.
This case, relating to boundaries of land, is here by direct appeal, and a motion to dismiss the case has been made on the ground that the record on appeal was not filed in this court in time. It was filed in the trial court on February 24 1931. The specifications of error were filed March 2, 1931 and the record, together with the specifications of error were filed in this court on May 1, 1931. Section 89-4910, W. R. S. 1931 (formerly Sec. 6410, W. C. S. 1920) provides that if no new trial is granted by the trial court within 20 days after the specifications of error, the record on appeal and the specifications of error shall thereupon be transmitted to this court. In Samuelson v. Tribune Pub. Co., 41 Wyo. 487, 287 P. 83, we dismissed the appeal, because of the long delay in filing the papers in this court, and we held, following previous cases, that the statute contemplates that the record on appeal should be transmitted to this court "forthwith," after the expiration of the twenty days above mentioned. To make the time specific, so that no one might err, we thereafter adopted Rule 35, effective January 1, 1931 (42 Wyo. 539), reading as follows:
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Horse Creek Conservation District v. Lincoln Land Co., 1983
...v. Board, 42 Wyo. 67; Bolln Company v. Freeman, 42 Wyo. 375; Caldwell v. State, 12 Wyo. 206; Goodrich v. Bank, 26 Wyo. 42; Porter v. Carstensen, 44 Wyo. 49; Samuel Christensen, 47 Wyo. 331; Samuelson v. Tribune Company, 41 Wyo. 487; Lion Coal Company v. Contas, 42 Wyo. 94. For the defendant......
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... ... 319; Caldwell ... v. State, 12 Wyo. 206; Samuel v. Christensen ... Inc., 47 Wyo. 331; Porter v. Carstensen, 44 ... Wyo. 49; Jones v. Kaan, 37 Wyo. 165; Eggart v ... Dunning, 15 Wyo. 487; ... ...
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Henning v. City of Casper
...Roberts 53 Wyo. 491, 84 P.2d 718) and has been operative since Jan. 1, 1931. The reason for its adoption was explained in Porter vs. Carstensen, 44 Wyo. 49, 8 P.2d 446. It is clear that the explicit requirements neither the statute nor our Rule 35 were complied with, as the records on appea......
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Snider v. Rhodes
...was liberal for the express purpose of avoiding the situation with which we were confronted prior to the adoption of the rule. See Porter v. Carstensen, supra. The granting requests such as now made would make the rule worthless. The judgment in this case was entered on September 9, 1937. A......