Rim Group v. Mountain Mesa Uranium Corp.

• Decision Date: 11 February 1958
• Docket Number: No. 2797,2797
• Citation: 78 Wyo. 204,321 P.2d 229
• Parties: The RIM GROUP, a mining joint venture, Plaintiff and Respondent, v. MOUNTAIN MESA URANIUM CORPORATION, a Wyoming Corporation, San Juan Uranium Exploration, Inc., a Colorado Corporation, Charles M. Coleman, Defendants, and Riverton Uranium Corporation, a Nevada Corporation, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 229

321 P.2d 229

78 Wyo. 204

The RIM GROUP, a mining joint venture, Plaintiff and Respondent, v. MOUNTAIN MESA URANIUM CORPORATION, a Wyoming Corporation, San Juan Uranium Exploration, Inc., a Colorado Corporation, Charles M. Coleman, Defendants, and Riverton Uranium Corporation, a Nevada Corporation, Defendant and Appellant.

No. 2797.

Supreme Court of Wyoming.

Feb. 11, 1958.

Rehearing Denied April 15, 1958.

See 323 P.2d 939.

Spence & Hill, G. L. Spence, Riverton, Albert W. Dilling, Chicago, Ill., for appellant.

Smith & Nicholas, W. A. Smith, Lander, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This is an appeal from a denial of a motion to vacate a default judgment against appellant, Riverton Uranium Corporation, one of several defendants in a suit to quiet title to certain mining claims. It is urged that the motion should have been granted because appellant (a) had no notice of the time set for trial and (b) had a meritorious defense to the action.

Assuming, without deciding, that the setting of the case was required to be made by a formal order, we find that the record shows, and it is conceded, that the court on November 9, 1956, signed and entered an order setting the case for hearing on December 6, 1956; but appellant denies having received a copy of the order and further urges that the default was taken on December 7 and not on December 6, the day set for the hearing. Reliance is placed upon the provisions of § 3-211, W.C.S.1945, which statute requires the clerk of a district court to send copies of all orders to parties in all contested cases. Appellant's attorney testified that he did not receive a copy of the order and assumes that the clerk failed to comply with this statute. At the hearing on the motion the trial court asked appellant's attorney, 'Will you put the Clerk on the stand and find out whether or not he sent you a copy of that [the November 9 order]?' Counsel responded, 'Yes, I will in due course of this proceeding.' Unfortunately, he failed to do so.

The law is well settled that in the absence of a showing to the contrary a public officer is presumed to have performed a duty imposed upon him by law. See 43 Am.Jur., Public Officers § 511; 20 Am.Jur., Evidence § 171; 31 C.J.S. Evidence § 146; Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235; and Merryman v. School Dist. No. 16, 43 Wyo. 376, 5 P.2d 267, 86 A.L.R. 1181. Applying this rule to the officer here concerned, we find that 'It will be presumed, in the absence of any showing to the contrary, that a clerk [of court] has performed a duty imposed on him by law.' 14 C.J.S. Clerks of Courts § 46. Appellant must then be taken to have received the order setting the case for hearing on December 6, 1956. This is in accordance with the general rule of law on the subject, and in this instance we think no inequity results since appellant failed to comply with the court's request to clarify the matter.

We turn then to the fact that the case having been set for December 6 was passed on that day and the default taken on December 7. Under our previous rulings, a litigant is required at his peril to be familiar with and adhere to the schedule of the court in the trial of cases. In Spriggs v. Goodrich, 74 Wyo. 185, 285 P.2d 1103, 1109, 289 P.2d 648, we quoted with approval the case of Boulter v. Cook, 32 Wyo. 461, 234 P. 1101, 236 P. 245, as follows:

"It is the duty of a party, or his attorney, to take account of the time and place of holding court, the position of the case on the calendar, and the state of the calendar' * * *.'

This is in accord with the general rule. See 53 Am.Jur., Trial § 10. Applying the principle to the present situation, we think the court was fully justified in continuing to give its attention to another matter before it and at the conclusion thereof disposing of the litigation in which appellant was interested. It would be impractical to require a trial court to give a separate notice of hearing to any litigant whose case was postponed for a short time because of a priority of other hearings. In fact, we think it would be an obstruction of justice and an unwarranted delay in procedures. A litigant whose case is set but not reached because of other pending matters is obligated to await and be prepared to proceed at such time as the court is free.

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