Spalding v. McKnight

• Decision Date: 19 December 1944
• Docket Number: 2304,2303
• Citation: 154 P.2d 312,61 Wyo. 22
• Parties: C. D. SPALDING, as Special Administrator of the Estate of Louie M. Johnson, Deceased, Plaintiff in Error, v. JESSIE J. McKNIGHT, Defendant in Error
• Court: Wyoming Supreme Court

154 P.2d 312

61 Wyo. 22

C. D. SPALDING, as Special Administrator of the Estate of Louie M. Johnson, Deceased, Plaintiff in Error, v. JESSIE J. McKNIGHT, Defendant in Error

Nos. 2303, 2304

Supreme Court of Wyoming

December 19, 1944

Error to District Court, Albany County and Carbon County; V. J Tidball, Judge.

Two separate actions by Jesse J. McKnight against C. D. Spalding as special administrator of the estate of Louie M. Johnson deceased, which were consolidated for trial. Judgment for plaintiff, and defendant brings error. On motions to strike a purported bill of exceptions and to dismiss the proceedings in error.

Motions granted.

Proceedings dismissed.

For the plaintiff in error in each cause there were briefs by M. E. Corthell and J. R. Sullivan, both of Laramie, Wyoming, and Bruce Cameron of Portland, Oregon, and oral argument by Mr. Sullivan.

POINTS OF COUNSEL FOR PLAINTIFF IN ERROR

The Certificate does not have to be signed within the sixty-day period. The statutes do not require the signing or filing within the time allowed for preparing and presenting. Harden v. Card, 14 Wyo. 487; Vines v. State, 19 Wyo. 266.

All proceedings under the code shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The court should save the rights of the parties by saving the bill if possible. Stirling v. Wagner, 4 Wyo. 17; Conway v. Smith Merc. Co. , 6 Wyo. 333; Jones v. Bowman, 10 Wyo. 47.

The statute does not require the Trial Judge to allow, sign and file the Bill of Exceptions within the period granted the appellant for reducing the exceptions to writing.

A motion to strike a Bill of Exceptions because it was not presented within the time allowed and was incomplete when first presented, cannot be considered on affidavits of counsel explaining the condition of the Bill when so presented, but must be decided on the Bill itself and the recitals contained therein authenticated by the signature of the Trial Judge. Van Horn v. State, 5 Wyo. 501; 40 P. 964; Bank of Chadron v. Anderson, 7 Wyo. 441, 53 P. 280.

For the defendant in error in each cause there were briefs and also oral arguments by Carleton A. Lathrop, of Cheyenne, Wyoming, and A. R. McMicken, of Rawlins, Wyoming.

POINTS OF COUNSEL FOR DEFENDANT IN ERROR

The last day for presenting to the trial Court a Bill of Exceptions under Section 89-4701, was February 25, 1944, sixty days from the overruling of the motion for a new trial. No Bill of Exceptions was presented within said time, and no application was made requesting an extension. Morgan v. State, 26 Wyo. 212; 181 P. 598; Brooks v. State, 29 Wyo. 114; 210 P. 944; Chatterton v. Bonelli, 27 Wyo. 301; 196 P. 316; Jones v. Parker, 38 Wyo. 26; 264 P. 97; Hay Co. v. Allen, 42 Wyo. 265; 293 P. 370; Jones v. Armeling, 31 Wyo. 22; 222 P. 569; Fitzpatrick v. Rogen, 27 Wyo. 388; 197 P. 565. U. S. v. Jones, et al. 37 Law. Ed. 726, 149 U.S. 263.

The trial Judge has no jurisdiction over a case after 120 days from the entry of the final order from which an appeal is taken and has no jurisdiction after the original 60 days has expired unless an application is made for an extension.

The time when the Bill of Exceptions is settled and signed must be shown affirmatively on the record. The burden is on the plaintiff in error to make this showing. All statutory requirements must be complied with to give the Court jurisdiction and to advise the defendants in error the exact date when the Bill was presented. People v. Rosenwald (Ill.) 107 N.E. 854; Virginia Home for Incurables v. Coleman (Va.) 178 S.E. 998; City of Fallon v. Churchill County Bank Mortgage Corporation (Nev.) 49 P. 2d 358; Wright v. McCulla (Ala.) 80 So. 149; 4 C. J. S. 61; Ray v. Union Mercantile Company 3 Wyo. 417; Smith D. Co. v. Casper D. Co. 5 Wyo. 510; Catlin and Co. v. Miller and Chapman, 13 Wyo. 109.

Riner, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

Riner, Justice.

These causes, one of which originated in the District Court of Carbon County, the other having been commenced in the District Court of Albany County, were by stipulation of the parties consolidated for trial and heard by the presiding Judge of the Second Judicial District without a jury, at Laramie, in March, 1943. Thereafter judgments were rendered in favor of the plaintiff, Jesse J. McKnight, defendant in error here in both cases, these judgments being severally entered in the respective District Courts aforesaid on the same day, to-wit: November 6, 1943.

It appears that there was a motion for a new trial filed in each of these cases on November 16, 1943, in the District Courts above mentioned and which was in each case overruled by an order entered on December 27, 1943.

Petitions in error were filed here in each case on June 26, 1944, and the records therein, on July 12, 1944. Subsequently, motions to strike a purported bill of exceptions consisting of two volumes filed respectively in the District Court of Albany County on July 5, 1944, and in the District Court of Carbon County, July 6, 1944, and also motions to dismiss each of these proceedings in error were filed and thereafter heard by this Court and are now for decision.

In addition to the facts set forth above the situation presented would seem to be as follows: After the cases were tried as indicated the official Court Reporter prepared a transcript of the evidence submitted on the trial, and this transcript, consisting of two typewritten volumes, was delivered to the trial Judge before he rendered his judgments aforesaid and for his use in arriving at a proper disposition of the causes. It was also intimated by the parties that if either should subsequently desire to use said transcript for review proceedings in this Court it would be available for that purpose. This transcript remained in the possession of the Judge until a short time after the motions for new trials were overruled on December 27, 1943, as heretofore indicated. These written motions were also in the possession of the Judge at that time.

Nothing more seems to have been done in these cases until sometime after June 1, 1944, when counsel representing the defendant, C. D. Spalding, as Special Administrator of the Estate of Louis M. Johnson, Deceased, now the plaintiff is error here, appeared before the trial Judge, presented to him the material set out in the two volumes of evidence already mentioned to which had been attached the two motions for new trials, and requested him to sign, and he did so sign, a typewritten statement which was also attached following said motions for new trials. That statement reads:

"The foregoing transcript of evidence prepared pursuant to agreement between the parties for use on appeal to the Supreme Court and duly certified by the Court Reporter and the Clerk of Court, consisting of two bound volumes, was presented to me and remained in my possession until after the motions for new trial were overruled on the 27th day of December, 1943; that the foregoing motions for new trial were presented, and after counsel for defendants were advised that the motions were denied, they requested an exception to the ruling and that orders denying said motions containing their exceptions were reduced to writing by noting said exceptions in said orders overruling said motions; that the said transcript of evidence with the exceptions therein contained, and said motions for new trial and the exceptions denying said motions are truly alleged; that the transcript of evidence contains all of the evidence given or offered by either party on the trial of said causes, and the Court, having examined the same and having allowed said exceptions, does hereby sign, settle and seal the same and order that they be made a part of the record in the causes, but not spread at large upon the Journal."

This statement was not dated to indicate either the date of presentation thereof to the Court or its signature by the Judge.

The statutory provisions which are pertinent to a proper disposition of the defendant in error's motions to strike and to dismiss aforesaid are:

Section 89-4701, W. R. S. 1931, concerning bills of exceptions, and which directs that:

"The party objecting to the decision must except at the time the decision is made, and shall have sixty days from and after the date of the judgment, decree, or final order in the case within which to reduce the exception to writing and present the same to the court or judge for allowance. If within said sixty days the party excepting shall make it satisfactorily to appear to the court or judge authorized to allow the bill of exceptions that the party will be unavoidably prevented from presenting the bill within said time, the court or judge by written order may extend said time, but not to exceed sixty additional days."

Section 89-4704, W. R. S. 1931, also relating to bills of exceptions which reads in part:

"When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, * * * or because the verdict, or if a jury was waived, the finding of the court, is against the law or the evidence, the party excepting must reduce his exception to writing and present it to the court, or to the judge thereof in vacation, within the time given for allowance. If true, it shall be the duty of the court, if presented in open court, or the judge of the court before whom the cause was tried, if presented in vacation, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal."

Section 89-2101 W. R. S. 1931, declares that:

"A new trial is a re-examination in the same court of an issue of fact, after a verdict by a...