Samuel v. Christensen-Garing, Inc

• Decision Date: 21 November 1934
• Docket Number: 1890
• Citation: 47 Wyo. 331,37 P.2d 680
• Parties: SAMUEL, ET AL. v. CHRISTENSEN-GARING, INC
• Court: Wyoming Supreme Court

37 P.2d 680

47 Wyo. 331

SAMUEL, ET AL. v. CHRISTENSEN-GARING, INC

No. 1890

Supreme Court of Wyoming

November 21, 1934

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by Albert L. Samuel and others, co-partners, doing business as Goudvis Brothers, against Christensen-Garing Incorporated. Judgment for plaintiffs, and defendant appeals. On motion to dismiss the appeal.

Motion Dismissed.

In support of the motion to dismiss, there was argument by M. A Kline, of Cheyenne, Wyoming.

In resistance of the motion, there was argument by George F Guy, of Cheyenne, Wyoming.

No briefs were filed by either party.

OPINION

PER CURIAM

:

This case is here on direct appeal. The record on appeal was filed in the district court on June 9th, 1934, and in this court on August 10th, 1934, the intervening time being sixty-two days. The docket fee to be paid to the clerk of this court was paid on the last mentioned date.

The respondent has filed herein a motion to dismiss the appeal on the ground that the foregoing record was not filed in this court within the time required by the statute and the rules of this court. The appellant has filed a resistance to the motion, alleging that "it was not the duty of this defendant and appellant to transmit said record and that if the same did not arrive in the Supreme Court within the time required that said omission was not the fault or failure of this defendant and appellant; that if said record on appeal did not arrive in the Supreme Court within the period prescribed, it did arrive there within a day or two thereafter and such error was and is harmless and not prejudicial to the plaintiffs and appellees." The so-called resistance to the motion is not supported by any affidavit, and we cannot, accordingly, treat it as showing any valid excuse for not filing the record on appeal in this court within the necessary time. The fact that the docket fee, to be paid to the clerk of this court, was not paid until August 10, 1934, seems to indicate that no valid excuse exists. Counsel for appellant, however, argues that the statute makes it the duty of the clerk of the trial court and not of appellant to transmit the record to this court, and that in any event a delay of two days should not be considered such negligence as would warrant the court in dismissing the appeal. But counsel has overlooked the provisions of the statute and has not sufficiently considered what we have said in previous cases. Section 89-4910, Rev. St. 1931, provides that if no new trial is granted within twenty days after the specifications of error are filed, the clerk shall "thereupon" transmit the record to this court. We held in Samuelson v. Tribune Co., 41 Wyo. 487, 287 P. 83, that "thereupon" mentioned above means "forthwith"; that it is the duty of counsel for appellant...