Robertson v. State Highway Commission, 3717

• Decision Date: 05 March 1969
• Docket Number: No. 3717,3717
• Citation: 450 P.2d 1003
• Parties: Jack ROBERTSON and Nadene Joyce Robertson, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1003

450 P.2d 1003

Jack ROBERTSON and Nadene Joyce Robertson, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).

No. 3717.

Supreme Court of Wyoming.

March 5, 1969.

Robert A. Hufsmith, of Hufsmith & Gowen, Jackson, for appellants.

James E. Barrett, Atty. Gen., Glenn A. Williams, James O. Douglass, Special Asst. Attys. Gen., Cheyenne, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This is an emient domain case. The only contention made by appellants, who are landowners, is that the district court erred in not allowing their motion to quash the summons in condemnation.

Rule 71.1(d)(1), W.R.C.P., pertaining to condemnation provides, at the time of filing the complaint, the plaintiff shall apply to the court for an order fixing the time and place for a hearing on the complaint. The contention is this was not done. No other irregularities in procedure are claimed.

The record shows that a proper complaint for condemnation was filed; that summons in condemnation was duly issued and served on the appealing defendants; that the summons notified defendants of the time and place when a hearing on plaintiff's complaint would be held before the District Court, Third Judicial District, Teton County, Wyoming; and that defendants were to appear and defend. Other requirements for a proper summons were contained in the summons served.

On the day specified in the summons for hearing, owners filed a written motion to quash the summons in condemnation on the ground that the time for hearing had not been established in the manner prescribed by Rule 71.1(d). There is nothing in the record to show what, if any, action was taken by the court on this motion. The record does disclose that on the same day defendants filed an answer to plaintiff's complaint. No objection to the court's jurisdiction and no mention of noncompliance with Rule 71.1(d) (1) was contained in this answer.

It is apparent there was a jury trial on the issue of damages, and yet appellants have failed to include a transcript of testimony or any showing of oral rulings by the court in the record on appeal. Rule 75(b), W.R.C.P., is definite and specific in its requirements that, if an appellant wishes the record on appeal to contain less than all the proceedings and evidence of the case, he shall within 30 days after filing the notice of appeal serve upon the appellee and file with the district court a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal. No such designation appears in the record of this case.

We think the instant case is a proper case for application of Rule 61, W.R.C.P., which provides:

'No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'

Rule 4, W.R.C.P., seems to set forth the fundamental requisites of process which are essential in giving a court jurisdiction. The rule would indicate that ordinarily jurisdiction is obtained by the proper filing of a complaint and by the issuance and service of a sufficient summons-all of which were done in this case.

A reference next to Rule 71.1(d)(1) shows that its purpose is to require a plaintiff in condemnation to arrange with the court for a time and place when a hearing can be had. This obviously is because the time for appearance is shorter than in the usual action, and pleadings prior to hearing are not necessarily required.

The application for fixing of a time and place when hearing can be had would be an ex parte matter. It is noted also that plaintiff's complaint recites that Jack and Nadene Joyce Robertson are the legal owners of a...