Ryan v. Snyder

• Decision Date: 26 August 1921
• Docket Number: 1042
• Citation: 27 Wyo. 512,200 P. 105
• Parties: RYAN ET AL v. SNYDER
• Court: Wyoming Supreme Court

200 P. 105

27 Wyo. 512

RYAN ET AL v. SNYDER

No. 1042

Supreme Court of Wyoming

August 26, 1921

ERROR to the District Court, Converse County, HON. RALPH KIMBALL Judge.

Motions to Dismiss Denied.

S.E Phelps, for Defendant in Error for Motion to Strike and Dismiss.

The motion filed by plaintiff in error for a new trial was filed out of time and was ordered stricken by the trial court for that reason. The statute requires such motions to be filed within ten days after the report, verdict or decision is rendered except for a cause of newly discovered evidence. (Sec. 5872, Wyo. Comp. Stats. 1920.) This requirement is mandatory. (Casteel v. State, 9 Wyo. 267; 62 P. 348; Boswell v. Bliler, 9 Wyo. 279; 62 P. 350; Todd v. Peterson, 13 Wyo. 513; 81 P. 878; Blonde v. Merriam 21 Wyo. 519; 133 P. 1076.)

Hagens & Murane and Floyd E. Pendell, Opposing the Motion.

The motion for a new trial below was filed within the time; moreover the petition in error presents assignments of error based upon the record proper; the filing of the motion for a judgment in favor of defendants notwithstanding the verdict took the matter out of the ordinary rule, and the date of filing the motion for new trial should be computed as ten days after the decision of the trial court upon this motion; irrespective of this point the case is brought to the Supreme Court upon assignments of error appearing from the record proper, which may be considered without motion for a new trial or a bill of exceptions.

POTTER, C. J. BLUME, J., concurs. KIMBALL, J., did not sit.

OPINION

Heard on Motion to Dismiss

POTTER C. J.

This cause is here on error, and has been submitted on two motions filed by defendant in error, the first, a motion filed on May 2, 1921, to strike the petition in error filed on April 1, 1921, and to dismiss the proceeding, and the second, a motion filed on June 7, 1921 to dismiss the proceeding in error for the failure of the plaintiffs in error to file and serve briefs. The first motion was heard on May 9, and had not been disposed of but remained under advisement at the time of the said filing of the second motion and its submission on June 14; said second motion having been submitted on that date by stipulation without briefs or oral argument.

The only ground stated in the first motion is that the motion for new trial in the court below was filed out of time, and, for that reason, was ordered to be stricken from the files by said court; it being intended thereby to challenge the right of the plaintiffs in error to a hearing in this court on the ground that there was no proper motion for a new trial in the court below. And the question presented by counsel upon that motion was whether the motion for a new trial was filed within ten days after the verdict or decision was rendered, as required by statute, it being contended for the defendant in error upon the original papers sent here, which include a motion by the defendants below, plaintiffs in error here, for judgment notwithstanding the verdict, filed on October 25, 1920, and a motion for new trial filed by said defendants on November 5, 1920, that the last mentioned motion was filed out of time because not filed within ten days after verdict, which is shown by the record to have been returned and filed October 22, 1920, and counsel for plaintiffs in error contending that the motion was filed in time and improperly stricken from the files for the reason that it was filed within ten days after the decision disposing of the motion for judgment notwithstanding the verdict by the rendition of judgment on October 27, 1920. But it is unnecessary to consider that question. There is no bill of exceptions here, and, as often and uniformly decided, and required by our rules, a motion for a new trial, to be considered in a proceeding in error, must be embraced in a bill of exceptions, together with the fact that the motion was overruled and an exception was reserved to such ruling. The decisions are referred to and the rule is stated in the recently decided cases of Chatterton v. Bonelli, 27 Wyo. 301, 196 P. 316, and Fitzpatrick v. Rogan, 27 Wyo. 388, 197 P. 565. The said motion for a new trial would not, therefore, be properly in the record for consideration in a hearing of the case upon its merits, nor is it properly in the record for consideration of the question attempted to be presented by said motion to strike and dismiss.

That motion, however, must be denied for the reason that the petition in error contains assignments of error which may be considered upon the record proper without a bill of exceptions or a motion for a new trial. (Dobson v. Owens, 5 Wyo. 85; 37 P. 471; Bank of Chadron v. Anderson, 7 Wyo. 441; 53 P. 280.) The first four assignments of the petition in error may be so considered. They assign as error, Frist: That the court erred in overruling the demurrer to the amended petition, challenging the sufficiency of the facts stated in said petition to constitute a cause of action, to which ruling the plaintiffs in error excepted at the time; and the record here shows the overruling of such a demurrer and an exception to the ruling. A motion for new trial is not necessary to preserve the exception to that ruling. (Perkins v. McDowell, 3 Wyo. 328; 23 P. 71; Dobson v. Owens, 5 Wyo. 85; 37 P. 471.) The second assignment is that the court erred in entering judgment for the plaintiff below, defendant in error here, and against the plaintiffs in error, which may, perhaps, also present the question of the sufficiency of the petition. The third and fourth assignments are that said amended petition does not state facts sufficient to constitute a cause of action against either of the plaintiffs in error.

No brief having been filed by either of the parties upon the second motion, we can state the question to be considered only by stating what seems to be presented, and that we understand to be a question not heretofore considered by this court, viz., whether, pending a decision upon a motion to dismiss, a plaintiff in error is excused from filing and serving his brief upon the merits within the time fixed by our rules, where such motion has been filed and submitted before the expiration of the time prescribed for such brief. The plaintiffs in error opposed the first motion by oral argument and brief, but did not apply for an extension of the time for their brief upon the merits, which would expire on May 31, 1921, unless extended, or unless the fact that the motion was pending and under advisement would suspend the operation of the rule, or, at least, avoid the penalty provided for not complying with it. And there was no order extending the time nor stipulation filed waiving a failure to comply with the rule.

Under conditions like those in this case, it has been held in one case in another state, the only decision upon the question above stated coming to our attention, that the fact that a motion to dismiss was pending and under advisement was no excuse for the laches of an appellant in failing to file his points and authorities within thirty days after the filing of the transcript, no...