Sioux City Seed Co. v. Montgomery

• Decision Date: 14 October 1930
• Docket Number: 1596
• Citation: 42 Wyo. 170,291 P. 918
• Parties: SIOUX CITY SEED CO. v. J. H. MONTGOMERY
• Court: Wyoming Supreme Court

291 P. 918

42 Wyo. 170

SIOUX CITY SEED CO. v. J. H. MONTGOMERY

No. 1596

Supreme Court of Wyoming

October 14, 1930

ERROR to the District Court, Big Horn County; PERCY W. METZ, Judge.

Action by Sioux City Seed Company, a corporation, against J. H Montgomery, in which judgment was rendered against defendant by default. Defendant moved to vacate the judgment on ground of defective service of summons which motion was sustained by an order also holding that defendant by his motion had made a general appearance and requiring him to answer, from which order defendant brings proceedings in error. Heard on motion to strike bill of exceptions and dismiss proceedings in error.

The motion was submitted for defendant in error on the brief of Thomas M. McKinney, of Basin, Wyoming, and Lee & Lee, of Cheyenne, Wyoming.

The bill of exceptions should be stricken because not presented for allowance within time provided by law. 5864 C. S. This court will not consider matters on error not properly presented by bill of exceptions. Supreme Court Ruling 13; Mitter v. Coal Co., 27 Wyo. 72, 77. A bill of exceptions is necessary to present the motions complained of. The order complained of was based upon a hearing at which evidence was introduced, none of which is before this court for consideration, and the finding of the trial court based upon such evidence is conclusive, and should not be disturbed. Hester v. Smith, 5 Wyo. 291; Boburg v. Prahl, et al., 3 Wyo. 325; Posvar v. Pearce, 37 Wyo. 509; Padlock Ranch, Inc. v. Smith, 38 Wyo 393; James v. Lederer-Strauss & Co., 32 Wyo. 378. The motion tendered questions of fact, and the hearing thereon constituted a trial. Bouvier's Law Dictionary 1928, p. 1189. There was no motion for a new trial; motions are not before this court unless incorporated in a bill of exceptions. Syndicate Imp. Co. v. Bradley, 6 Wyo 171; Bank v. Henry, et al., 22 Wyo. 189; Culbertson v. Ainsworth, 26 Wyo. 214; Jones v. Armeling, 31 Wyo. 22. The motion appearing with the original papers alleges a meritorious defense, contains two exhibits and prays for general relief. It is more than a special appearance, and is in fact a general appearance. 4 C. J. 1341; Kilpatrick v. Horton, 15 Wyo. 501; Swocker v. Reynolds, 92 A. 76. The ruling of the trial court is not ground for reversal. Pardee v. Kuster, et al., 15 Wyo. 368. The burden of showing prejudice rests upon plaintiff in error. Bank v. Henry, et al., supra. The order below was not an appealable order. 6369 C. S. It does not affect a substantial right, or determine the action, nor prevent a judgment. Owen v. Railway Co., 19 Wyo. 409; Greenawalt v. Imp. Co., 16 Wyo. 226; Menardi v. O'Malley, 3 Wyo. 327; Hahn v. Citizens State Bank, 25 Wyo. 467; Mitter v. Black Diamond Coal Co., 28 Wyo. 439; Jacobson v. Wickham, 36 Wyo. 522. The proceedings cannot be treated as a direct appeal, no notice having been served or made a part of the record. 6402, 6404, 6406 C. S.

The cause was submitted for the plaintiff in error on the brief of C. A. Zaring, of Basin, Wyoming.

The court erred in ruling that defendant had made a general appearance in the cause. There was no necessity for a motion for a new trial. 3 C. J. 966; Stein v. Schuneman, 39 Wyo. 476. The bill of exceptions merely contains original records and plaintiff in error asks leave to withdraw it from the record. The motion to vacate the judgment bears no analogy to a motion for a new trial. Grubb v. Milan, 94 N.E. 927. The motion might be properly considered as a petition to vacate the judgment. The order is appealable. Anderson v. Inglehart, 18 Wyo. 196. The order vacating the judgment for lack of jurisdiction, and also requiring defendant to answer, affected defendant's substantial rights, and is an appealable order. The motion should be construed as a petition to vacate the judgment and considered a part of the record proper.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

J. H. Montgomery, plaintiff below and hereinafter referred to as such, on August 6, 1928, commenced an action against the Sioux City Seed Company, a corporation, defendant below and referred to here as such, and had summons served upon the wife of a former statutory agent of the defendant. Judgment was rendered against the defendant by default November 17, 1928. During the same term of court, on December 13, 1928, the defendant filed in the cause what is denominated a motion to vacate the judgment, alleging that it was void because no proper service of process was ever had upon it. It was further alleged that defendant had a valid defense to said action, and the prayer was that the judgment "be vacated, set aside and held for naught and for such other and proper relief as may be necessary in the premises." A hearing was had upon this motion and it was taken under advisement. On May 29, 1929, the court made and entered an order vacating the judgment above mentioned on the ground that the court was without jurisdiction at the time of entering it, but further held that the defendant made a general appearance in the cause by its motion and prayer for relief, and required the defendant to answer the petition on or before June 22, 1929. Against this order requiring it to answer, the defendant has brought proceedings in error.

The plaintiff has filed herein a motion to strike the bill of exceptions and to dismiss the proceedings in error. The defendant has conceded that the bill should be stricken because not presented in time, and that has accordingly been done. The consideration of the motion to dismiss, however, has been postponed until this time. The order vacating the judgment does not state the grounds upon which the court held that defendant had made a general appearance, and in order to determine whether that is so or not, we must necessarily have before us for examination the so-called motion to vacate the judgment. That motion has been certified among the original papers in the case, but unless it is part of the record proper, without a bill of exceptions, we are not in position to consider it. It becomes necessary, accordingly, to determine whether or not such a motion should be embodied in a bill of exceptions in order that it may be considered by this court on a proceeding in error. It is not one of the papers mentioned in Section 5903, Wyo. C. S. 1920, which defines what constitutes the record in a case, and nearly all the courts hold that a motion to vacate or set aside a judgment is not a part of the record proper and that on appeal such motion must be preserved by a bill of exceptions. 4 C. J. 167; Davis v. Lammers, 23 Okla. 338, 100 P. 514; Devault v. Exchange Co., 22 Okla. 624, 98 P. 342; Ptack v. Strong, 121 Ore. 688, 257 P. 19. The defendant, though its thought was different when getting up its bill of exceptions, now seeks to evade the rule above stated by claiming that the so-called motion filed in the case should be considered a petition, evidently contending that it initiated a separate proceeding, and is thus a part of the record proper without a bill of exceptions. The Supreme Court of Missouri, indeed, considers a motion to vacate as an independent proceeding, holding it...