Ruby v. Schuett

• Decision Date: 09 March 1961
• Docket Number: No. 2954,2954
• Citation: 360 P.2d 170
• Parties: Jesse Dale RUBY, Administrator of the Estate of Jesse D. Ruby, also known as J. D. Ruby, deceased; Jesse Dale Ruby; Dola M. Shane; Wyoma C. Brown; Max L. Ruby; and Ceola F. Bell, Appellants (Plaintiffs below), v. John W. SCHUETT, Erick J. Ohman and Lynn Tarver, the Board of County Commissioners of Campbell County, Wyoming, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 170

360 P.2d 170

Jesse Dale RUBY, Administrator of the Estate of Jesse D. Ruby, also known as J. D. Ruby, deceased; Jesse Dale Ruby; Dola M. Shane; Wyoma C. Brown; Max L. Ruby; and Ceola F. Bell, Appellants (Plaintiffs below), v. John W. SCHUETT, Erick J. Ohman and Lynn Tarver, the Board of County Commissioners of Campbell County, Wyoming, Appellees (Defendants below).

No. 2954.

Supreme Court of Wyoming.

March 9, 1961.

Earl Dunlap, Gillette, and R. G. Diefenderfer, Sheridan, for appellants.

Thomas Morgan, County and Pros. Atty. for Campbell County, Gillette, for appellees.

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

Mr. Justice PARKER delivered the opinion of the court.

On October 1, 1957, the Board of County Commissioners of Campbell County (hereafter called commissioners) acting upon the petition of sixteen residents who desired to have an auto-gate road established across certain lands, including those of Jesse D. Ruby, entered as a part of their proceedings and published in the News-Record, Gillette, Wyoming, the following:

'The Board of the County Commissioners of Campbell County, Wyoming, State of Wyoming, has decided to establish an auto gate road commencing at a point on the Gillette-Savageton-Pine Tree Road 2000 feet south of the southwest corner of Section 29, Township 44, North, Range 74 W., then running in an easterly direction across Section 32, 33, and to the center of Section 34, thence in a southeasterly direction across the SE 1/4 of Section 34, and the SW 1/4 SW 1/4 of Section 35, all in T. 44 N. R., 74 W., 6th P. M. thence in a southeasterly direction across the NE 1/4 NW 1/4 of Section 2, thence east across the NE 1/4 of Section 2 and across the N 1/2 N 1/2 of Section 1, all in Township 43 North, Range 74 W., to a point where it intersects with the Clarkelen Road in Campbell County, Wyoming, which is the termination of said Road.

'All objections thereto or claims for damages by reason thereof must be filed in writing with the County Clerk of said County before noon on the 6th day of November A. D. 1957, or such road will be established without reference to such objections or claims for damages.'

On October 29, Jesse D. Ruby filed with the commissioners an 'Objection to Establishment of Auto Gate Road and Claim for Damages' in which he alleged that the description of the road was so indefinite that it could not be surveyed and that the proposal was in the nature of a private road to serve only one or two ranchers who could adequately be served by going from the two highways mentioned in the notice across their own property. He alleged further that the proposed way would constitute a hazard and damage to his property in the amount of $16,180 and stated 'which amount is claimed as damages if such auto gate road be established.'

Jesse D. Ruby died on February 23, 1958, before any further action had been taken by the commissioners; and his son, Jesse Dale Ruby, administrator of his estate, was served with certain subsequent notices, treated by the commissioners as the party in interest, and later filed the appeal in district court. The property was thereafter distributed to the Ruby heirs, and while the case was pending in the district court, an order was entered substituting these heirs as plaintiffs.

The commissioners appointed three appraisers who on April 12, 1958, appraised the Ruby damage at $90 and on May 7 gave notice that they would accept or reject the appraisers' report on May 19. On June 4 the chairman issued a 'Certificate of Right-of-Way-Acquisition' and the next day served a notice on the administrator of the estate to remove a fence from the property in question. On June 6 Jesse Dale Ruby filed notice of appeal to the district court.

After the trial of the cause a judgment was entered on August 3, 1959, dismissing the appeal from the commissioners' decision and increasing the damages theretofore allowed from $90 to $150. On September 2 the plaintiffs filed notice of appeal but did not file a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal until October 22.

Defendants now argue their motion to dismiss the appeal on the ground that the designation was not filed within the thirty-day period allowed by Rule 75(a), Wyoming Rules of Civil Procedure. Plaintiffs' counsel admit noncompliance with the rule but say that the failure was due to the inability of the reporter to provide the transcript, urging also that the rule is harsh and that some confusion existed regarding the effective version because of an amendment deleting the portion which permitted the district court to extend the time for filing the designation.

As a prelude to any discussion of this subject, it should be said that this court adopted the Wyoming counterpart of the Federal Rules of Civil Procedure, 28 U.S.C.A., at the instance of the Wyoming State Bar and being cognizant of the difficulty in adjusting to new rules has been extremely lenient in applying them, hoping that all might become conversant with them before any litigants were injured by reason of counsel's failure of compliance. However, the time has now passed when this view will be further justified and hereafter there must be careful adherence to all of the provisions of the Wyoming Rules of Civil Procedure. In that connection it may be well to say a word about an attorney's responsibility for keeping abreast of the current rules. All amendments thereof are published in the Wyoming Law Journal which is sent to every law firm in the State. It is thus possible for interested persons to keep the rules up to date in a manner not dissimilar to that employed in the annotation of statutes. It must be assumed that those having matters before the court are fully aware of all rule changes which have been published in the Wyoming Law Journal, and in the future counsel will not be heard to state the contrary.

The supreme court's advisory committee was convinced that the provisions of Rule 75 were fair and the requirements thereunder desirable. In our experience the general designation need not be based upon a transcript. An appellant should be fully aware of the errors which he charges without being prompted by a study of the transcript. If it were not so, counsel would be asking for consideration which he has not accorded to the trial court. From time to time special situations may arise which without fault of a litigant would create real hardship, and in such instances this court would be willing and able to make exceptions.

Strictly speaking, plaintiffs have presented no good reason for failure to comply with Rule 75(a). On the other hand, this court is for the first time stating its position that a transcript is unnecessary in preparing the designation of contents of the record on appeal; and for this reason perhaps some leniency is justified. The departure from the rule is emphatically disapproved but all of the existing circumstances do not seem to call for the...