Scott v. Wyoming Rock Products Co., 1412

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Per Curiam.
• Citation: 264 P. 86,37 Wyo. 527
• Docket Number: 1412
• Decision Date: 14 February 1928
• Parties: SCOTT, ET AL. v. WYOMING ROCK PRODUCTS CO., ET AL. [*]

264 P. 86

37 Wyo. 527

SCOTT, ET AL.
v.
WYOMING ROCK PRODUCTS CO., ET AL. ^[*]

No. 1412

Supreme Court of Wyoming

February 14, 1928

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by H. L. Scott and another, doing business as Scott & Curlee, against the Wyoming Rock Products Company and others. From an order overruling plaintiffs' motion to vacate the judgment, plaintiffs appeal.

Appeal dismissed.

Ambrose Hemingway and A. D. Alsup, for appellants.

The judgment and order rendered on February 16th was valid, and not having been vacated or set aside, the judgment of March 3rd entered on March 11th, 1926 was invalid, since it attempted to vacate the judgment of February 16th. Secs. 5875, 5893, 5894, 5896, 5900 C. S.; Daley v. Anderson, 7 Wyo. 1; Hahn v. Bank, 25 Wyo. 467; Freeman on Judgments, Sec. 46-49; Brown v. Court, 234 P. 409; 34 C. J. 175-182; 15 R. C. L. Sec. 11. The oral rendition of the judgment at the termination of the trial was valid as between the parties, except perhaps the right of appeal, even though the same had never been reduced to writing nor signed by the trial judge. The judgment of March 3rd attempted, at a subsequent term, to vacate a valid judgment rendered on February 16, 1926; our statute regulates the setting aside of a judgment, Ch. 370 C. S.; Sec. 5923-27; Brennan v. Co., 29 Wyo. 116; O'Keefe v. Foster, 5 Wyo. 343; McGinnis v. Beatty, 28 Wyo. 328; 34 C. J. Sec. 437, Judgments; Anderson v. Co., (Nebr.) 79 N.W. 612; U.S. v. Sixty-five Cases, etc., 254 F. 211; McLeod v. Co., (Ala.) 102 So. 597; State v. Court, 176 P. 608; U.S. v. Mayer, 235 U.S. 55; Freeman on Judgments, p 381.

Hagens & Murane, for defendant Gantz.

The record on appeal was filed more than seventy days after the entry of the judgment or order appealed from, which was too late, 6404 C. S.; the court was without authority to extend the time by order made after the seventy-day period. Thomas v. Bivin, 32 Wyo. 479; 6406 C. S. Affidavits filed in the case are not part of the original papers and constitute no part of the record, Improvement Co. v. Bradley, 6 Wyo. 171; Bank v. Sorensen, 30 Wyo. 136. A judgment is defined by statute, 5875 C. S. All judgments and orders must be entered on the journal, 5900 C. S. The statute is mandatory, Coe v. Erb, (Ohio) 52 N.E. 640; Eldridge v. Barrere, (Ohio) 78 N.E. 516; Comm. v. Musselli, (Ohio) 130 N.E. 32; Freeman (5th ed.), Sec. 194; Webber v. Webber, (Ohio) 51 N.E. 116. Even after the term the trial judge who finds after signing a judgment that he has labored under mistake or misapprehension, may vacate the judgment. 1 Freeman on Judgments, Sec. 220.

Ambrose Hemingway and A. D. Alsup, in reply.

The record on appeal was in fact filed with the clerk on July 12, 1926; the clerk's certificate shows that fact; evidently the clerk did not sign it until August 20th, 1926 but the record shows it to have been prepared in June, 1926. In this case the single question is whether the judgment and order rendered by the court on the 16th of February was ever lawfully vacated. We contend that it was not.

OPINION

[37 Wyo. 529] Per Curiam.

This appeal is from an order, entered May 29, 1926, overruling appellants' motion to vacate a judgment previously entered.

The interested respondent...