Snider v. Rhodes

• Decision Date: 25 May 1938
• Docket Number: 2071
• Citation: 79 P.2d 481,53 Wyo. 157
• Parties: SNIDER v. RHODES (SNIDER, ET AL., INTERVENERS)
• Court: Wyoming Supreme Court

79 P.2d 481

53 Wyo. 157

SNIDER v. RHODES (SNIDER, ET AL., INTERVENERS)

No. 2071

Supreme Court of Wyoming

May 25, 1938

APPEAL from the District Court, Sheridan County; HARRY P. ILSLEY Judge.

Action by Ira B. Snider against J. C. Rhodes, administrator of the estate of M. W. Snider, deceased, in which Louise E. Snider and others intervened. From a judgment for defendant and interveners, plaintiff appeals. On motion to dismiss the appeal.

Motion Sustained.

In support of the Motion to Dismiss appeal, there was a brief by Maurice L. Cone, H. Glenn Kinsley and Louis J. O'Marr all of Sheridan.

The case is governed by the decision in Porter, et al. v Carstensen, 44 Wyo. 49, 8 P.2d 446. The decision in Samuelson v. Tribune Publishing Company, 41 Wyo. 87 also sustains the provisions of Supreme Court Rule 35. The legislature has power to control appellate procedure. Article 5, Section 18, State Constitution. The Supreme Court has power to prescribe rules of practice not inconsistent with the constitution or laws of the state, and such rules have the force of legislative enactments. Section 31-107, R. S 1931. It has been held in numerous cases that appellate courts have such power, even in the absence of statute. 15 C. J. 910, 911. Supreme Court Rule 35 does not usurp any power or authority of the district court. The affidavit filed in resistance of the motion to dismiss does not show that any effort was made by counsel in the matter to obtain the filing fee within the required time. The motion should have been sustained.

In resistance to the motion to dismiss the appeal, there was a brief by R. G. Diefenderfer and John F. Raper of Sheridan.

Supreme Court Rule 35 is void, because the Supreme Court was without authority to adopt it. The rule is only directory, and a dismissal of the appeal would result in a denial of justice. The power of the Supreme Court to prescribe rules is derived from Section 31-107, R. S. This statute was cited in Dean v. Oil Company, 21 Wyo. 133, which related to another rule of the court. The Constitution restricts the power of the Supreme Court as to its general jurisdiction by such rules and regulations as may be prescribed by law. Article 5, Section 18, Constitution. This clearly means rules prescribed by the legislature and not by the courts. There is no requirement in the statutes that a record on appeal must be filed within any stated period. We therefore contend that such record may be filed at any time, subject however to the rule of due diligence on the part of the appellant. Sec. 89-4911, R. S. provides that the Supreme Court shall not acquire jurisdiction until the record on appeal is filed with the clerk of said court. This court held in Genero v. Roach, 39 Wyo. 40, that the District Court retains jurisdiction until the record on appeal is filed in the Supreme Court. Through the adoption of Rule 35, the Supreme Court exceeded the power granted it by Section 31-107, R. S. 1931, and by this rule attempts to control procedure solely under the jurisdiction of the district court. Rules adopted by the Supreme Court have no application to the practice in law courts. Railroad Company v. Kirk (Miss.) 58 So. 710; Posvar v. Royce, 37 Wyo. 34. The petition in error was not filed within the one year period required by Section 6384 of Wyo. Comp. Stat. 1920, now Section 89-4816, R. S. 1936. No rule of court was involved in that case. The case of In re Contas, 42 Wyo. 59 and In re Sikora, 42 Wyo. 60 were decided under the Workmen's Compensation Statute, which at that time allowed only thirty days from entry of the order below for the filing of the record on appeal. If the court decides that it does possess the authority to regulate direct appeal procedure, prior to the time when it acquires jurisdiction, still we urge that in the present case it should deny the Motion to Dismiss. The sixty day period fixed by Rule 35 expired on January 26, 1938, and the fee was obtained by attorneys for appellant on January 27, 1938, and forwarded to the clerk by air mail on January 28, 1938. It was received by him on January 29, 1938, at which time he filed the record. The delay in obtaining and forwarding the money was due to poverty on the part of appellant. It seems clear that Rule 35 is not mandatory. At most, this case is only "subject to dismissal," which leaves the matter within the discretion of the court. It would seem to be an abuse of discretion for this court to refuse a hearing to appellant. He is a poor man and the effect of a dismissal would be that every door to relief in this cause would thereby be forever closed to him. A full year is allowed by statute for the commencement of proceedings in error as a matter of right, yet under the direct appeal statute and Rule 35, the appellant may take only 160 days from the entry of judgment in the lower court. It does not seem that the difference in the time allowed under the respective methods of procedure should be considered with the other circumstances, to the end that justice shall not be denied appellant, because of a purely technical objection not based upon a mandatory requirement.

OPINION

PER CURIAM.

This case is pending on a motion to dismiss the appeal, on account of the record on appeal not having been filed in this court within the time prescribed by Rule 35 of this court, which provides: "A case brought by direct appeal to the Supreme Court shall be subject to dismissal if the record on appeal shall not have been filed in the office of the clerk of the Supreme Court within sixty days after such record shall have been filed in the office of the clerk of the district court as required by law." The record on appeal in this case was filed in the office of the clerk of the district court of Sheridan County, Wyoming, on November 27, 1937. It was received by the clerk of this court on January 10, 1938, but the fee of $ 15 for filing it was not received until January 29, 1938. The latter date accordingly, is the date on which the record on appeal is considered as having been filed in this court. Posvar v. Royce, Sheriff, 37 Wyo. 34, 258 P. 587. That was more than sixty days after it had been filed in the district court. We have several times dismissed appeals for violating Rule 35. In re Federal Lands Emergency Construction Project, etc., 50 Wyo. 41, 57 P.2d 684; Samuel v. Christensen-Garing, 47 Wyo. 331, 37 P.2d 680; Porter v. Carstensen, 44 Wyo. 49, 8 P.2d 446. It is claimed by counsel for appellant that the rule is void. They contend that the statute makes no provision as to when a record on appeal shall be filed, and that the court has no power to fix the time. Counsel are in error. Section 89-4910, R. S. 1931, provides that if no "new trial is granted by the district court within the period of twenty days from the date on which the...