Schmidt v. First National Bank
| Decision Date | 20 February 1923 |
| Docket Number | 1131 |
| Citation | 29 Wyo. 260,212 P. 651 |
| Parties | SCHMIDT v. FIRST NATIONAL BANK |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Weston County; HON. JAMES H. BURGESS Judge.
Action by First National Bank of Newcastle against Fred J. Schmidt and Carl Schmidt to foreclose certain mortgages. Heard on motion to dismiss the proceedings in error.
Raymond and LaFleiche, in support of the motion.
The pretended bill of exceptions was not filed with the clerk below until 81 days after entry of judgment; the motion for new trial was filed November 30, 1921 but was not presented nor passed upon until August 11, 1922; no extension of time was granted for filing a bill of exceptions, a pretended bill of exceptions was presented June 27th, 1921 and settled, but it contained a statement by the trial judge that the motion for a new trial was never presented to nor ruled upon by the court; the filing of a pretended bill of exceptions with the clerk on March 11, 1922 was not a presentation to the court or judge thereof and furthermore the filing was beyond the statutory limit. (Condradt v. Lepper, 13 Wyo. 99; Seibel v. Bath, 5 Wyo. 409; Burns v Railroad, 14 Wyo. 498.); there is nothing before this court for review.
T. E Dunbar, Allen G. Fisher and Samuel L. O'Brien, contra.
Motion for new trial was filed in time but not ruled upon owing to absence of the trial judge, until August 12, 1921. The transcript of testimony was not received by counsel for plaintiff in error until June 26, 1922. The transcript was submitted to counsel for defendant in error which he declined to accept on the ground that more than 60 days had elapsed since date of judgment and the transcript was thereupon submitted to the trial judge on August 7, 1922. A bill of exceptions is unnecessary to make a motion for new trial a part of the record since the enactment of the direct appeal act (6401-6415, C. S. 1920.) The motion for new trial and the rulings thereon are made part of the record in any case by (6410 C. S.) The bill of exceptions was allowed within statutory time after making the final order; a bill of exceptions may be taken and considered as part of the record for some purposes although no motion for new trial was ever made (Ide v. Churchill, 140 O. S. 372; Randall v. Turner, 17 O. S. 262; Gueaga Iron Co. v State, 19 O. S. 300.) A bill of exceptions is unnecessary to secure a review of the judgment and the pleadings. The direct appeal statute shows the recent thought of the people embodied in legislation, to-wit, the identification by the clerk and the seal of the court is sufficient without any writing by the trial judge except his signature to the original orders. The petition in error indicates and the brief of plaintiff attempts to discuss with law citations points not contained in the bill, that the petition by misjoiner attempts to plead. Under the Nebraska and Ohio practice which is similar to ours, the rule is adhered to, that a motion to dismiss may not be made nor other objection to the form of record on appeal after the time in which the rules compel appellant to serve brief on the merits, and which has been served upon appellee or defendant in error, it being insisted that fair dealing and timely objection at the earliest possible time when appellee could object will save cost of briefs and spare attorneys much labor.
A motion has been filed by defendant in error, the First National Bank of Newcastle, to dismiss this case for the reason that there is nothing before the court for review. The action is one by said bank as plaintiff below, against Fred J. Schmidt and Carl Schmidt for the foreclosure of certain mortgages. The defendant Fred J. Schmidt, plaintiff in error herein, was made a party to the action for the alleged reason that he claims a pretended lien against the property involved. He appeared, setting up an agistor's lien. The existence of the lien was denied in the reply. Judgment in the case was rendered in the court below on November 21, 1921. A motion for a new trial was filed November 30, 1921. This motion was not acted on until August 11, 1922, when it was overruled by the court and an exception given to plaintiff in error. A bill of exceptions was signed and allowed by the trial judge on June 27, 1922. It does not appear from the record when it was presented, but from the brief of plaintiff in error on the motion herein, it doubtless was sent to the trial judge on June 26, 1922, who received it on the following day. The bill, however, does not appear to have ever been filed in the court below, either before or after the signing thereof. A motion for a new trial is embodied in the bill, but the lower court recites in the latter that "the said motion for a new trial was never presented and has never been ruled upon by the District Court of Weston County or any judge thereof." The question is, as to whether or not there are before us any points to be decided.
In order that errors assigned may be reviewed here, they must appear in the record, and for that purpose there must be shown the matter presented to the lower court, the ruling thereon and the exception taken. Cases brought to this court are, in their relation to motions for a new trial and to a bill of exceptions, of three classes: (1) where neither a motion for a new trial nor a bill of exceptions is required; (2) where a bill of exceptions, but not a motion for a new trial, is necessary; (3) where both a motion for a new trial as well as a bill of exceptions are indispensable, the former to be embodied in the latter. These will now be considered in more detail.
Where the error appears on the face of the record proper, it may be considered without a bill of exceptions or motion for a new trial; this is true, for example, in cases where the error assigned is that the petition does not state facts sufficient to constitute a cause of action. That particular error is assigned in the case at bar as assignment of error No. 5, but the point is not argued, and hence waived, and we have nothing before us to consider in connection therewith. Assignment of error No. 8 is that the District Court erred in overruling the motion of Fred J. Schmidt for judgment in his favor and against the bank notwithstanding the verdict. This, too, is mentioned in the motion for a new trial and the reasons assigned are that the pleadings do not give the court jurisdiction or right to enter the judgment it did. Without conceding that this point could be presented without a bill, this assignment of error is similar to No. 5 in that it is not argued and nothing pointed...
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